Climate and Ecology

1st reading
Wednesday 10th May 2023 Commons Chamber

Motion for leave to bring in a Bill (Standing Order No. 23)

13:20

[Olivia Blake (Sheffield, Hallam) (Lab)]

I beg to move,

That leave be given to bring in a Bill to require the United Kingdom to achieve climate and nature targets; to give the Secretary of State a duty to implement a strategy to achieve those targets; to establish a Climate and Nature Assembly to advise the Secretary of State in creating that strategy; to give duties to the Committee on Climate Change and the Joint Nature Conservation Committee regarding the strategy and targets; and for connected purposes.

It is a great honour to introduce the Climate and Ecology Bill. I pay tribute to the Bill’s current sponsor and former promoter, the hon. Member for Brighton, Pavilion (Caroline Lucas), who has long championed this Bill, as well as to Lord Redesdale, who did likewise in the other place. I am proud to lead this cross-party effort for the UK to embed in law the ambition and the action we need to tackle the environmental crisis.

The Bill has been drafted and is supported by many of Britain’s leading climate and ecology scientists. We must align our policies with the latest science and with what the UK has agreed internationally. This is not a matter of partisan politics; it is a matter of survival. It is about providing a sustainable way of life for our nation today and for generations to come. I urge all colleagues to join the growing all-party cohort of Members from both Houses who back this Bill, and I am especially grateful to the hon. Member for St Ives (Derek Thomas) for supporting it so enthusiastically.

This Bill is our chance to position the UK as a world leader on climate and environmental action. Our ability to prevent temperatures rising by more than 1.5°C is in the balance. Now is the time not to give up on that aim, but to redouble our efforts to meet it. As the Prime Minister of Barbados, Mia Mottley, told us in Glasgow, 1.5 is the only way to survive.

The double-headed climate and nature crisis is affecting people’s lives now, especially in the global south, but increasingly here in the UK as well. Just think of the climate change-triggered heatwaves in India and Pakistan, the floods we have seen worldwide and, of course, the floods and heatwaves of recent years here in the UK. There is no room for complacency and no time to waste.

Nature provides our best chance to mitigate climate change and its worst impacts, such as extreme flooding and drought. As Sir David Attenborough has shown us, nature is not a “nice to have”; it is all we have. As one of the world’s most nature-depleted nations, we must aim higher and we must do better.

We cannot solve the climate crisis without saving our key ecosystems, restoring habitats and protecting our much-loved species. The UK’s critical carbon sinks and stores, such as peatland, woodland, soils, wetlands and seas, are deteriorating, reducing their capacity to absorb carbon. In some cases, they have even become net carbon sources rather than sinks and stores. Protecting nature must take equal priority with cutting emissions.

Half of the world’s annual economic output, some $44 trillion, is being put at risk by the depletion of natural resources. Alongside that, up to 300 million people face an increased risk of floods and hurricanes due to the loss of buffering coastline habitats, and the loss of pollinators is already causing some 430,000 deaths every year by reducing the supply of healthy food. It is clear that we must act with all urgency, at home and abroad, and stand united for nature.

That is why the Bill is such an important piece of legislation. It is the only piece of proposed or existing legislation that would tackle the intertwined crises of climate and nature together to ensure a strong, integrated response. If enacted, it would create a joined-up plan to cut emissions in line with the 1.5°C target, while halting and reversing nature loss by 2030. By following the science and involving the British public, we can deliver the transition to a zero-carbon, nature-positive future, allowing us to live in harmony with nature. The ongoing Ukraine and energy crises remind us all too clearly of the need to transition fairly and rapidly away from fossil fuel dependency. We need to see action at home and abroad, and legislation is very much part of the solution.

The Bill centralises the importance of social justice and the fact that the UK cannot and must not offshore environmental destruction at the expense of the global south. That means we must take responsibility for our emissions footprint and our overseas footprint, and deal with the root causes of climate and ecological breakdown. The Bill also seeks to protect people by ensuring that no one is left behind via its fairness provisions and through the inclusion of a climate and nature assembly to incorporate public opinion in the unprecedented pace of change that is now required.

Clause 1 contains the Bill’s apex climate and nature targets. Having a net zero date is an important marker, but we need to understand the area below the curve—in other words, how much carbon we can emit into the atmosphere before we breach 1.5°C. The Bill would limit the UK’s total carbon emissions to no more than its proportionate share of the Intergovernmental Panel on Climate Change’s remaining global carbon budget for a 67% chance of limiting heating to 1.5°C.

By transitioning to a renewable energy future, we would not only end our reliance on deadly fossil fuels, but create the jobs of the future and tackle the soaring cost of living crisis at source. Bridging the ambition gap between current emissions reductions and what is needed for 1.5°C is essential if we are serious about restoring the natural world, and it could not be more urgent.

We know that human activities have already altered 70% of the Earth’s land, degrading up to 40% of it, and 87% of its oceans. The Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services has found that 1 million animal and plant species now face extinction and that mammal, bird, amphibian, reptile and fish populations decreased globally by 68% between 1970 and 2016.

That is why the Bill’s nature target is to halt and reverse the UK’s overall contribution to the degradation and loss of nature in the UK and overseas. It is aligned with the international commitment to halt and reverse the destruction of nature by 2030, which the UK signed up to at the UN biodiversity conference, COP15, in 2022.

Current legislation contains a target to halt the decline in the abundance of species by 2030, as well as a longer-term target to increase species populations. However, the absence of any concrete plan to address the current rate of decline means that the state of nature is on course to worsen considerably by 2030, which risks pushing ecosystems beyond danger points from which they may not be able to recover.

The Bill’s holistic nature target would therefore see the health, abundance, diversity and resilience of species, populations, habitats and ecosystems visibly and measurably on the path to recovery by 2030, measured against a baseline of 2020. That is what this moment requires: to follow the science, to invest in nature and to restore our once-wild isles.

Clause 2 is focused on the development of a climate and nature strategy. It states that the strategy must produce a just transition for all, by protecting vulnerable communities and providing financial support for workers transitioning from fossil fuel and ecosystem-intensive industries into the jobs of the future. The clause contains measures that must be met in achieving the Bill’s apex targets, including accounting for all of the UK’s imported emissions, as well as those that take place on UK soil, so that the UK is not offshoring our pollution; ending the exploration, extraction, export and import of fossil fuels by the UK as rapidly as possible; ensuring that all UK policies prioritise avoiding the loss of nature; and ensuring that the UK takes account of its entire ecological footprint and all the destruction to nature caused by the production, transportation and disposal of the goods and services we consume.

The transition to a zero-carbon, nature-positive UK will affect how we all live, travel and work, so we should all have a role in planning how we get there. The climate assembly set up by six Select Committees that reported in September 2020, as well as the citizens’ assemblies that have taken place on climate and biodiversity in Ireland and the many others around the world, demonstrate the value of including citizens in the difficult decisions that we will have to take.

From my work in Sheffield Hallam on the climate manifesto, which comprises ideas directly sourced from my constituents, I know the importance of democracy in the transition to net zero and in protecting nature. For that reason, clause 3 would provide for a representative sample of the UK population to consider expert advice and reports on recommendations for inclusion in the strategy as part of the temporary nature and climate assembly. Clause 4 contains duties on the Committee on Climate Change and the Joint Nature Conservation Committee to evaluate, monitor and report on the implementation of the strategy. Clause 5 ensures that measures in areas of devolved competence would be agreed by the Scottish Parliament, the Welsh Parliament and the Northern Ireland Assembly.

As my hon. Friend the Member for Newport West (Ruth Jones) said so well during a debate on the principles last November:

“We know that climate action must be nature-positive action and that we must halt and reverse the loss of biodiversity by 2030 for the benefit of all people and the planet.”—[Official Report, 9 November 2022; Vol. 722, c. 150WH.]

This Bill brings that vital issue to the fore. I am delighted that so many members of local councils, including Councillor Georgia Gould, and local Mayors, including the Mayor of London, have recognised that and are backing the Bill. It is time that we got the action we need from the Government to ensure that we can survive.

Question put and agreed to.

Ordered,

That Olivia Blake, Geraint Davies, Caroline Lucas, Colum Eastwood, Ed Davey, Wera Hobhouse, Liz Saville Roberts, Stephen Farry, Sir Peter Bottomley, Derek Thomas, Alan Brown and Brendan O’Hara present the Bill.

Olivia Blake accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 24 November, and to be printed (Bill 304).

Northern Ireland (Interim Arrangements) Bill (Allocation of Time)

Ordered,

That the following provisions shall apply to the proceedings on the Northern Ireland (Interim Arrangements) Bill:

Timetable

(1) (a) Proceedings on Second Reading and in Committee of the whole House, any proceedings on Consideration and proceedings on Third Reading shall be taken at today’s sitting in accordance with this Order.

(b) Proceedings on Second Reading shall (so far as not previously concluded) be brought to a conclusion four hours after the commencement of proceedings on the Motion for this Order.

(c) Proceedings in Committee of the whole House, any proceedings on Consideration and proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion six hours after the commencement of proceedings on the Motion for this Order.

Timing of proceedings and Questions to be put

(2) When the Bill has been read a second time:

(a) it shall, despite Standing Order No. 63 (Committal of bills not subject to a programme order), stand committed to a Committee of the whole House without any Question being put;

(b) the Speaker shall leave the chair whether or not notice of an Instruction has been given.

(3) (a) On the conclusion of proceedings in Committee of the whole House, the Chair shall report the Bill to the House without putting any Question.

(b) If the Bill is reported with amendments, the House shall proceed to consider the Bill as amended without any Question being put.

(4) For the purpose of bringing any proceedings to a conclusion in accordance with paragraph (1), the Chair or Speaker shall forthwith put the following Questions in the same order as they would fall to be put if this Order did not apply:

(a) any Question already proposed from the chair;

(b) any Question necessary to bring to a decision a Question so proposed;

(c) the Question on any amendment moved or Motion made by a Minister of the Crown;

(d) the question on any amendment, new Clause or new Schedule selected by the Chair or Speaker for separate decision;

(e) any other Question necessary for the disposal of the business to be concluded; and shall not put any other questions, other than the question on any motion described in paragraph (15)(a) of this Order.

(5) On a Motion so made for a new Clause or a new Schedule, the Chair or Speaker shall put only the Question that the Clause or Schedule be added to the Bill.

(6) If two or more Questions would fall to be put under paragraph (4)(c) on successive amendments moved or Motions made by a Minister of the Crown, the Chair or Speaker shall instead put a single Question in relation to those amendments or Motions.

(7) If two or more Questions would fall to be put under paragraph (4)(e) in relation to successive provisions of the Bill, the Chair shall instead put a single Question in relation to those provisions, except that the Question shall be put separately on any Clause of or Schedule to the Bill which a Minister of the Crown has signified an intention to leave out.

Consideration of Lords Amendments

(8) (a) Any Lords Amendments to the Bill may be considered forthwith without any Question being put; and any proceedings interrupted for that purpose shall be suspended accordingly.

(b) Proceedings on consideration of Lords Amendments shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement; and any proceedings suspended under sub-paragraph (a) shall thereupon be resumed.

(9) Paragraphs (2) to (7) of Standing Order No. 83F (Programme orders: conclusion of proceedings on consideration of Lords amendments) apply for the purposes of bringing any proceedings to a conclusion in accordance with paragraph (8) of this Order.

Subsequent stages

(10) (a) Any further Message from the Lords on the Bill may be considered forthwith without any Question being put; and any proceedings interrupted for that purpose shall be suspended accordingly.

(b) Proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement; and any proceedings suspended under sub-paragraph (a) shall thereupon be resumed.

(11) Paragraphs (2) to (5) of Standing Order No. 83G (Programme orders: conclusion of proceedings on further messages from the Lords) apply for the purposes of bringing any proceedings to a conclusion in accordance with paragraph (10) of this Order.

Reasons Committee

(12) Paragraphs (2) to (6) of Standing Order No. 83H (Programme orders: reasons committee) apply in relation to any committee to be appointed to draw up reasons after proceedings have been brought to a conclusion in accordance with this Order.

Miscellaneous

(13) Standing Order No. 15(1) (Exempted business) shall apply to proceedings on the Bill.

(14) Standing Order No. 82 (Business Committee) shall not apply in relation to any proceedings to which this Order applies.

(15) (a) No Motion shall be made, except by a Minister of the Crown, to alter the order in which any proceedings on the Bill are taken, to recommit the Bill or to vary or supplement the provisions of this Order.

(b) No notice shall be required of such a Motion.

(c) Such a Motion may be considered forthwith without any Question being put; and any proceedings interrupted for that purpose shall be suspended accordingly.

(d) The Question on such a Motion shall be put forthwith; and any proceedings suspended under sub-paragraph (c) shall thereupon be resumed.

(e) Standing Order No. 15(1) (Exempted business) shall apply to proceedings on such a Motion.

(16) (a) No dilatory Motion shall be made in relation to proceedings to which this Order applies except by a Minister of the Crown.

(b) The Question on any such Motion shall be put forthwith.

(17) (a) The start of any debate under Standing Order No. 24 (Emergency debates) to be held on a day on which the Bill has been set down to be taken as an Order of the Day shall be postponed until the conclusion of any proceedings on that day to which this Order applies.

(b) Standing Order No. 15(1) (Exempted business) shall apply to proceedings in respect of such a debate.

(18) Proceedings to which this Order applies shall not be interrupted under any Standing Order relating to the sittings of the House.

(19) (a) Any private business which has been set down for consideration at a time falling after the commencement of proceedings on this Order or on the Bill on a day on which the Bill has been set down to be taken as an Order of the Day shall, instead of being considered as provided by Standing Orders or by any Order of the House, be considered at the conclusion of the proceedings on the Bill on that day.

(b) Standing Order No. 15(1) (Exempted business) shall apply to the private business so far as necessary for the purpose of securing that the business may be considered for a period of three hours.—(Mr Steve Baker.)

Northern Ireland (Interim Arrangements) Bill

2nd reading
Wednesday 10th May 2023 Commons Chamber

Second Reading

13:32

[The Minister of State, Northern Ireland Office (Mr Steve Baker)]

I beg to move, That the Bill be now read a Second time.

It is, of course, with profound regret that I return to the Dispatch Box to bring forward legislation in the absence of a Northern Ireland Executive. I am sure that right hon. and hon. Members across the House will agree that this is not a position that any of us would want to be in. The Government remain committed to supporting the restoration of the Executive in Northern Ireland as soon as possible. Functioning governance for Northern Ireland by its elected representatives is the best outcome for citizens.

Last month, we all came together to reflect on the 25th anniversary of the Belfast/Good Friday agreement, and to mark the progress that Northern Ireland has made over the past quarter-century and the peace and prosperity that the agreement has brought. Of course, we also reflected on the work that remains to be done. The anniversary is an opportunity for us all to recommit to building an even brighter future for Northern Ireland. We need to see Northern Ireland’s political leaders come together and restore the devolved institutions established by the agreement, which is the surest way of delivering on the priorities of Northern Ireland’s peoples and of safeguarding our Union.

We have been very clear that to strengthen and protect the Union, we must persuade people and demonstrate that devolved government within the UK is what works best for Northern Ireland. It is in that spirit that we agreed the Windsor framework, seeking to restore the balance of the agreement and solve the issues posed by the Northern Ireland protocol. Now is the time for the parties to move forward together for what is the best possible future for Northern Ireland, and to deliver on the priorities of its people. That includes a more prosperous economy and better, more sustainable public services.

[Mr Gregory Campbell (East Londonderry) (DUP)]

The Minister quite correctly draws attention to the fact that the best way for Northern Ireland to have success in the future is to get devolved government up and running within the United Kingdom. Does he agree that that can best be done when all main sections of the community in Northern Ireland buy into the process of governance by which they would be governed?

[Mr Baker]

Yes, of course. My right hon. Friend the Secretary of State and I agree that it must involve all sections of the community. I will be very frank with the hon. Gentleman: I recognise that the Windsor framework is a hard compromise for many sections of the Unionist community because it leaves in place some European Union law in order to have an infrastructure-free border. That is why it is also a hard compromise for Conservative Eurosceptics and for me. But I recognise that, of all the plausible futures for Northern Ireland before us, the one that is best for the people of Northern Ireland is to accept the Windsor framework, including the Stormont brake and the consent mechanism, to restore devolved government and move forward together.

As I said when I answered the final oral question earlier, Northern Ireland has an amazing opportunity. Northern Ireland Members will know better than me the incredible strength of the entrepreneurial private sector in Northern Ireland. What I see is a sector that could, with political stability, soar. With privileged access to the UK, to the EU, and to our free trade agreements under UK services law, we could achieve amazing things that will secure Northern Ireland’s prosperity, and, I believe, secure consent for Northern Ireland’s place in the Union. But I think that, for the moment, I had best leave unsaid what will happen if people continue to go without good-quality devolved government and where that will lead. If that is a topic that Members wish to pursue, perhaps we can have a different debate. I hope that is helpful to the hon. Member for East Londonderry (Mr Campbell).

I want to be absolutely clear that my right hon. Friend the Secretary of State, the Prime Minister and I all wish to preserve Northern Ireland’s place in the Union, respecting the UK’s commitments under the Belfast/Good Friday agreement. We are Unionists, although I am aware that there are some commentators for whom we can never be Unionist enough—but I am allowing myself to digress and I should get back on track.

[Sir Jeffrey M. Donaldson (Lagan Valley) (DUP)]

It may just be the way in which the Minister phrased what he said, but this is important: our ability to trade with the rest of the United Kingdom is not a privilege; it is a right. It is a right under article 6 of the Act of Union that we have the economic right to trade, barrier-free, with the rest of our own country. Yes, privileged access to the EU, but let us not talk about “privileged access” to the UK market. We are part of the United Kingdom.

[Mr Baker]

The right hon. Gentleman is absolutely right, and I apologise to him and to Northern Ireland Members. I had it in my head to say “privileged access to the EU”, but seeing him sitting there, I wanted to mention the UK first. It was a mistake. He is absolutely right that Northern Ireland’s right to trade unhampered into the UK is one that, as we explained at oral questions earlier, we continue to stand by and preserve, and which, under the Windsor framework, we have permanently guaranteed. I am grateful to him for clarifying that point. I will press on.

Before I provide an overview of the Bill, I should say a few words on Northern Ireland’s public finances. As the Bill’s provisions indicate, we are acutely concerned about the long-term sustainability of public finances in Northern Ireland. It was with considerable disappointment that my right hon. Friend the Secretary of State found it necessary once again to step in and set a budget for Northern Ireland for 2023-24 in the absence of a Northern Ireland Executive and Assembly. As the Secretary of State has made clear on multiple occasions, the extent of the budget pressures facing Northern Ireland Departments is extremely challenging. Departments are facing difficult and unavoidable decisions in the current difficult and frustrating circumstances.

The Government recognise that we need an Executive in place to take some of those difficult decisions and make the choices on budget priorities—choices that officials should not have to face without Ministers. We stand ready to work with a restored Executive on that, but in the meantime, we the Government of the UK have a responsibility to ensure that public services and the management of public funds can continue in their absence, so we will in due course take forward legislation to put the budget on a legal footing. Members of this House will have the opportunity to debate those allocations in detail at that time, if and when we come to it.

[Stephen Farry (North Down) (Alliance)]

There is concern about the nature of the current civil service guidance. The Government believe that the civil service has the capacity to take decisions; civil servants do not believe that they have the vires to take decisions, particularly in relation to statutory functions. Does the Minister recognise that we are at somewhat of an impasse in the current status quo, and that there is a danger that we end up either with difficult decisions being deferred, which makes them more painful, or with a managed overspend, which is another very undesirable situation?

[Mr Baker]

I do recognise those aspects. We have published today revised guidance and those relatively small changes are now available on gov.uk. We will certainly be interested in the hon. Gentleman’s views, and those of all relevant parties, on that guidance. In a nutshell, I agree with him that the best way forward is to restore the institutions. I am trying not to hector, but we are all very frustrated. As I have repeatedly said, I recognise that the Democratic Unionist party and Unionism more broadly face a very difficult compromise, but I am committed, as I know the hon. Gentleman is, to saying that devolved government in Northern Ireland is the best way forward.

[Simon Hoare (North Dorset) (Con)]

Will my hon. Friend give way?

[Mr Baker]

I will, and once I have done so I will try to press on.

[Simon Hoare]

I am grateful to my hon. Friend for giving way. Picking up on the point raised by the hon. Member for North Down (Stephen Farry) with regard to the role of civil servants, is the Minister able to consider seconding GB civil servants with experience of delivering dynamic change management to both the Northern Ireland civil service and the Northern Ireland Office in order to help deliver those changes? Although we hope it will for a short period of time, all hands are needed to the pump.

[Mr Baker]

My hon. Friend makes a very sensible suggestion. I am sure it will be considered in due course, but I hope he will not mind me saying that it would be best if that request came from a restored Executive. I know that I sound like a broken record, but that is the present issue.

I will press on. First, I express my sincere thanks to Opposition Members for continuing to ensure that Northern Ireland is served as well as possible and for not making it a political football. I appreciate that most sincerely.

The Bill does three important things. First, it continues the provisions relating to decision making for Northern Ireland civil servants, which Parliament passed in December in the Northern Ireland (Executive Formation etc) Act 2022. Those provisions, which clarify the decisions that civil servants in the Northern Ireland Departments can take in the absence of Northern Ireland Ministers and an Executive, are due to expire on 5 June. Under this Bill, those powers will continue until an Executive are restored. This will avoid a governance gap arising if an Executive are not in place by 5 June. As before, senior officers will be required to have regard to guidance, now published, set by my right hon. Friend the Secretary of State and the Government. That draft is out there, and we will take representations on it.

The second thing that the Bill does, and this is a little more novel, is give power to the Secretary of State to explore, with Northern Ireland Departments, options for budget sustainability, including further revenue raising, in Northern Ireland. Alongside allowing him to commission advice, the Bill will allow the Secretary of State to direct consultations to be held by Northern Ireland Departments on those matters. These powers are time-limited and apply only until an Executive are formed.

[Colum Eastwood (Foyle) (SDLP)]

I am grateful to the Minister for giving way. He has talked about revenue raising. It is possible that a new model for funding higher education will be looked at. Given that all Governments have said that they want to ensure an expansion in student numbers in Derry, can he guarantee that that hope and desire will be protected under any new funding model?

[Mr Baker]

As the hon. Gentleman knows, I cannot guarantee what a restored Executive will choose to do, but I can guarantee that we will listen to him and all relevant stakeholders. Indeed, we meet the university frequently—I did so on a recent visit. We certainly wish to take the advice of the universities and, indeed, representatives from Northern Ireland as we work towards commissioning advice. Without wishing to preview what we are likely to do, of course student finance is an important matter to consider. I am grateful to the hon. Gentleman.

The powers are deliberately focused on official advice and consultations on budget sustainability. Final decisions on implementation are best taken by locally elected representatives, and this Bill does not give the Secretary of State any power to direct implementation of such budget measures.

The third thing the Bill does is ensure greater political oversight of the management of public money in the absence of the Assembly, by providing for Northern Ireland Departments’ accounts and associated documents to be laid in the House of Commons. In previous absences of the Northern Ireland Assembly, the law has provided for that scrutiny to fall to Parliament, and the provision in this Bill will do that again. This provision will be active for all periods where there is no functioning Assembly, on the basis that public bodies must always be scrutinised to ensure good management of public money.

In conclusion, the measures in this Bill will ensure a continuation of the current Government’s arrangements in Northern Ireland.

[Jim Shannon (Strangford) (DUP)]

I thank the Minister very much for what he has said so far. My constituents are concerned about the issue of childcare. I know that the moneys allocated by this House for childcare are for England alone, but as we approach the council elections, my constituents and others I have met on the doorsteps over the past few days have informed me that they are very concerned that Northern Ireland has not been offered childcare arrangements similar to those in England. Whether that will come through the Barnett consequentials or elsewhere, it has to happen. I am making a constructive comment, and I hope that the Minister will accept it as such. Only 60% of employed women with dependent children work full time, as opposed to 95% of men with dependent children. It is clear that the lack of affordable childcare—this is what they are telling me on the doorstep—is holding back women in Northern Ireland. What can be done through this interim arrangements Bill to enable childcare provision in Northern Ireland?

[Mr Baker]

I have enormous empathy for what the hon. Gentleman says. He is right to say that without childcare, women will be held back. That is why my right hon. Friend the Chancellor included so much on childcare in his Budget statement. As awkward as it is for me to once again be a stuck record, the hon. Gentleman knows that it is a devolved area. Barnett consequentials are relevant and it will be for a restored Executive to put these things in place. I am not for a moment pretending that this is a perfect or permanent solution for governance in Northern Ireland. These are interim arrangements and we very much hope, for reasons that I have begun to sketch, that we might be able to persuade Unionism to support the return of the institutions so that we can make sure that Northern Ireland gets all of the services for which he passionately and rightly argues.

The measures in the Bill will ensure the continuation of governance arrangements should there be no Executive when they expire on 5 June. They are not, and cannot be, a substitute for devolved government, as I have just said. They are by no means ideal, particularly in the context of this financial position. I want particularly to thank Northern Ireland civil servants, because they are in a very difficult position and we are extremely grateful to them for the burden that they are taking on. We continue to be grateful, and we will continue to give them what support we can.

The marking of the Belfast/Good Friday agreement has reminded us all of the importance of making the institutions in Northern Ireland work. This Government believe that an effective and functioning devolved government is crucial to showing that the Union works for the whole community in Northern Ireland. That is why the restoration of the Executive remains a Government top priority. We will continue to do everything we can to make that happen, and as we do so we will keep these arrangements under review. But for now, I commend the Bill to the House.

13:48

[Peter Kyle (Hove) (Lab)]

I thank the Minister for setting out the measures in the Bill. We will not oppose it, as it is necessary to allow civil servants to keep running Departments in Northern Ireland in the absence of an Executive. It is also welcome that Northern Ireland Department accounts will be laid before Parliament, to allow some scrutiny in this period.

Of course, what we would all like to see instead of this Bill is the restoration of accountable local government. Six months ago, on Second Reading of the Northern Ireland (Executive Formation etc) Bill, I said—

[The Secretary of State for Northern Ireland (Chris Heaton-Harris)]

Ah!

[Peter Kyle]

I am repeating what I said because I am not sure that the Secretary of State was paying as much attention as he might have done at the time. I said:

“The longer the Executive are collapsed, the hollower the 25th anniversary of the Belfast/Good Friday agreement…will be. Power sharing is the essential and hard-won outcome of that agreement. It is incumbent on the UK Government and the European Union to engage with the concerns of the Unionist community that led to its withdrawal from the institutions. Equally, any solution that emerges must be acceptable to the nationalist community to allow power sharing to resume.”—[Official Report, 29 November 2022; Vol. 723, c. 827.]

I will happily repeat that again if the Secretary of State missed it this time.

However, something has gone wrong. On paper, we have an agreement between the United Kingdom and the European Union that intends to restore power sharing, yet Stormont is still empty. The 25th anniversary was not hollow, but it is a missed opportunity that Stormont has not returned despite the Windsor framework and all the good will generated by the anniversary itself. Listening to Tony Blair at the Queen’s University conference, it was clear how persistence from a prime ministerial level was crucial to finding a solution in 1998. He described the

“seemingly endless days and nights”

of negotiation. It was a huge commitment for a new Prime Minister to make, and it was also a risk.

Tony Blair’s deep optimism about Northern Ireland’s future, then and today, shone through. He also paid tribute to the extraordinary leadership across Northern Ireland’s communities, saying that

“this agreement only happened because leaders were prepared to put their leadership in peril for the good of their people.”

The current Prime Minister needs to display a similar commitment and similar leadership—to stay the course and keep showing up, even when there are no prime ministerial visits. There is clearly a disconnect between what he believes the framework has achieved and what some members of the Unionist community say that it does. These challenges are not insurmountable, but progress can only be achieved if Westminster remains deeply committed and deeply engaged. We on the Labour Benches supported the framework in the national interest, so we would welcome an update to Parliament on its implementation and what is still needed from either side for its effects to be felt.

Ultimately, it might only be perseverance that builds back some of the trust in the UK Government that people in Northern Ireland have lost. More defined processes would be very helpful, so that we avoid a disconnect between what the Government are trying to achieve and what actually happens. In the Windsor framework, the Government committed to further legislation that would ease Unionist concerns about Northern Ireland’s place within the United Kingdom. In a recent session of the Northern Ireland Affairs Committee, the Secretary of State said that he was

“yet to be able to determine the exact items”

that would go into such legislation. Perhaps the Minister could elaborate on when that mystery legislation will appear, and what the consultation process for it will be.

The Labour party will always take a constructive approach when it comes to Northern Ireland. There are clauses in the Bill that give the Secretary of State power to ask for advice on options for raising public revenue. Those have led to some very useful discussions on the fiscal framework in which the Executive operate. In particular, I praise the work of the Northern Ireland Fiscal Council, whose updated estimate of the relative need for public spending has grabbed the attention of all parties. The Secretary of State also said to the Northern Ireland Affairs Committee that

“there is the ability, will and understanding of the public finances necessary for us to come together with a plan for transformation.”

It does feel like movement is building to improve Northern Ireland’s financial stability. It would be good to hear what the next steps are for the Secretary of State once he receives the requested advice on policy options from civil servants.

The powers in the Bill last only as long as there is no Executive, so there will hopefully be a limited opportunity to use them. The decision-making powers we have given to civil servants will also now last until the Executive are formed, instead of there being a six-month deadline. I pay tribute—just as the Secretary of State and his Minister, the hon. Member for Wycombe (Mr Baker), did—to all civil servants who are being asked to go far beyond what should be expected of them. The head of the civil service, Jayne Brady, gave evidence last week to the Northern Ireland Affairs Committee. She highlighted some of the challenges that the civil service is facing on how to make decisions within the budget that the Secretary of State now has to set out. In her words, even with the Bill,

“there will be decisions that we will not be able to make because they will not be aligned with the legal construct we are operating in.”

In summing up, the Minister should address that possible gap and what decisions might fall into it.

One of the themes from meetings that I recently had with Northern Ireland groups is that it is difficult to understand where responsibility ultimately lies. That really worries me—as a Parliament, it should worry all of us. The Secretary of State has been clear that we are not moving into direct rule; what we have instead is limited interventions from Westminster that keep public services functioning with limited scrutiny. The situation cannot continue forever. I hope that we can build on the momentum of the 25th anniversary and the recognition of how special the peace process was and continues to be, and I hope that we see power sharing restored soon.

[Mr Deputy Speaker (Sir Roger Gale)]

I call the Chairman of the Select Committee.

13:55

[Simon Hoare (North Dorset) (Con)]

I support this Bill as a necessity, without any particular enthusiasm, and I echo and endorse entirely what my hon. Friend the Minister said in exhorting political parties to get back into Stormont to deliver for people. I also echo the point made by the shadow Secretary of State, the hon. Member for Hove (Peter Kyle), about the importance of learning from the process of talks and leadership that got us to the Good Friday agreement. We cannot sit like latter-day Mr Micawbers, waiting for something to turn up; we have to try to make the weather. I suggest to my hon. and right hon. Friends on the Government Front Bench that if conversations are not already being had with Dublin as one of the two capital co-guarantors of the Good Friday agreement, they should re-inject some energy, pull people in and find out precisely what the issues are and what, if anything, can be done to address them and rebuild trust, in order to get back to serving the people of Northern Ireland through directly elected politicians.

Over this coronation weekend, I learned from our vicar in Blandford Forum a new Henry Ford quote—it was new to me, although possibly not to anybody else. Henry Ford once said that if he had asked the population at the time what they wanted, they would not have said a motor car; they would have said that they wanted a faster horse. Sometimes, we as politicians have to make the weather, and show leadership and shape the debate, rather than merely echo what the base has to say. That requires the vision, the courage and the bravery that we saw from that political class in the mid-1990s, running through to the Good Friday agreement. I am an optimist, and I believe that that spirit of delivery in public service still exists. It is not beyond the wit of this place and the political parties in Northern Ireland to resurrect it and to see Stormont come back.

I think we all recognise that for too long, bold and brave policy initiatives in Northern Ireland have been slightly less to the fore. There has been a tendency to ask for additional moneys from the Treasury, and the Treasury coughing up and providing it through some avenue or another. Everybody is conscious of the unique history of Northern Ireland as part of the United Kingdom, and therefore of the additional needs for public expenditure and intervention that are required, which are different from any other part of the UK. However, as we, hopefully, move forward—we discussed this at the Select Committee this morning, and Sir David Sterling certainly echoed this point—in order to deliver step changes of improvement for those who use public services, a greater reliance on match funding from the Treasury needs to be looked at. That means that local politicians in Northern Ireland deliver new streams of money, either through revenue or expenditure savings, and the Treasury provides new money. To just continually provide new money with no concomitant reform from Belfast does not serve any particular purpose, and arguably raises too many questions in the minds of English voters as to why they are not getting a greater share of the public purse than, for example, those in Northern Ireland, because they too readily and easily forget the difficult history.

[Gavin Robinson (Belfast East) (DUP)]

The Chairman of the Northern Ireland Affairs Committee will remember that back in January, he and I argued the toss on issues of how Northern Ireland is financed. Since then, I appreciate that he took a letter from me. He understood exactly where I was coming from on the structural improvements required for the funding of Northern Ireland and launched an inquiry in that regard. I appreciate those efforts, but I regret that even today he is talking about coughing up on a regular basis more and more money from the Treasury, when he knows from the Fiscal Council that this is not a separate discussion about reform, though that is necessary and important for the delivery of public services. Northern Ireland is structurally underfunded by this Parliament, and it has been for years, with a compounding impact on the ability to deliver public services. Rather than pitch us against his constituents in England, would it not be better for him to reflect on the structural underfunding, the resolve to get Northern Ireland to a more sustainable place with public finances and the need to use a comparator such as Wales, which went through exactly the same process 15 years ago, culminating in a financial uplift 10 years ago?

[Simon Hoare]

Let me answer that point first. The hon. Gentleman makes a perfectly valid point, and I am grateful to him for being the genesis for the Committee’s current inquiry, which is proving incredibly useful. He is right to talk about the disparity, and perhaps the phrase “coughing up” might not have been the most elegant I could have used, but he knows me well enough to know that elegance is not one of my greatest strengths. I can almost feel a second letter of “I agree with you” coming from him. He will be pleased to know that the one he sent me some months ago adorns the wall of the downstairs loo, as a rare thing of him agreeing with something that I said in this place in a debate on Northern Ireland.

In all seriousness—this is a point we discussed upstairs in Committee—constituents in England, Wales and Scotland are paying for things that residents of Northern Ireland currently are not paying for. While he is right to point to some of the structural imbalances, it does need to be a two-way street. There should not be an opportunity for the continuance of water and other things being outwith the charging mechanisms while expecting additional resource from Treasury to meet that gap. If he has looked at the reports of the Fiscal Council, he will see clearly the amount of money that could be generated by introducing charges.

[Claire Hanna (Belfast South) (SDLP)]

This is an interesting discussion, and the hon. Member for Belfast East (Gavin Robinson) has, on a number of occasions, made sensible points about the challenges of delivering public services with the economy of scale that we have in Northern Ireland. Would the hon. Member for North Dorset (Simon Hoare) agree that when we look to a wider economy of scale, perhaps on the island of Ireland, services become considerably more viable? Would he further agree that it opens up the opportunity of using numerous other fiscal levers to take us outside the locked-in cycle of just being dependent on pocket money from UK Governments? Would he further agree that the substantial budget surplus that the Republic is currently identifying and enjoying could help with some of these problems?

[Simon Hoare]

The hon. Lady digs the most elegant of tiger traps, hoping I will jump into it, but I will swerve around it. She makes a point that most people in their heart of hearts would agree with, which is that if a greater bang for the public sector buck can be achieved, which then has a direct benefit for outcomes in health, economic development, education and so on, that should be explored. Part of the reason why so many people in this place were keen to ensure the openness of the border north-south was that huge exchange of people, trade and ideas that takes place on a daily basis. Purely in the need to try to drive as much efficiency for the taxpayer as possible, nothing should be ruled in or out. If, however, her intervention was an elegant way of inviting me to endorse the idea of joint authority, I am afraid I will have to disappoint her, because devolution is the only game in town as far as I am concerned, and the Minister articulated that, too.

I move to my final point, because I know that others wish to speak. Under new section 5A in the Bill, which concerns advice and information, any direction from the Secretary of State falls or lapses at the end of the current period in which there is no Executive. What that could effectively mean—perhaps the Bill is deliberately opaque on this—is that all the work, consultation, information, advice and so on is lost. Does it get passed to Ministers in Stormont as a piece of work that they may or may not wish to consider? We know that the Secretary of State perfectly properly—although that in itself is a debatable point—cannot take decisions based on the advice or consultation. However, if that good work, particularly that undertaken by civil servants—as always, they will be rising to the challenge of trying to deliver not just existing public services, but public service reform—is to be meaningful, I would hope that the advice and information tabled to the Secretary of State would be passported over to the relevant new Minister in the Executive.

It is clear, certainly in the evidence sessions that we have held, in meetings that the Committee has had and on visits to Northern Ireland, that the public are ahead of us on this. They know that there are problems with public service. The right hon. Member for East Antrim (Sammy Wilson) made the point to me some while ago that a resurrected Stormont could not solve all the problems, and he is right to make that point, but it can certainly play a part in trying to find solutions to very many of them. The public appetite for public service reform is acute, as people face the cost of living crisis post covid and the economy faces all the challenges as a result of Ukraine and the associated knock-on effects. I would like to hear from the Minister what will happen to that advice.

I join the Minister in praying, exalting, urging—whatever. The people of Northern Ireland deserve so much better than this. They do not deserve interim arrangements. They do not deserve or need temporary sticking plasters. They need fundamental, robust, energised and engaged public service. The appetite is there, and I believe that it is growing across the political parties in Northern Ireland. I hope that we can get Stormont back up and running because, as we all know, devolution really is the only show in town.

[Mr Deputy Speaker (Sir Roger Gale)]

I call the Scottish National party spokesman.

14:07

[Richard Thomson (Gordon) (SNP)]

Let me say at the outset that I wish we were not here once again discussing this issue, but we all know exactly why we are. For the purposes of form, I will say once again that my firm belief is that Northern Ireland is best governed when it is governed locally, and the best place for MLAs to be is in Stormont, getting on with what the people of Northern Ireland would expect them to be getting on with: the job they were elected to do.

The Bill may be necessary to help close what is being termed as the governance gap in the absence of an Executive, but the damage of not having the Assembly up and running and the Executive in place is obvious in terms of good government in Northern Ireland. Decisions taken in Northern Ireland by politicians elected in Northern Ireland with a mandate from the people of Northern Ireland will always be much better taken, much better informed, much more legitimate and have far greater transparency than any decision, with the best will in the world, ever taken in this place on devolved matters on their behalf.

Where the preferences and priorities of voters in Northern Ireland run counter to those of the Government in Westminster, it is an inevitability that when Ministers in Westminster exercise those powers, it will be in line with their own preferences and priorities, rather than necessarily those in Northern Ireland. That lack of legitimacy matters, as does the absence of political direction, which has results in the decision-making process.

From my own time in local government, I developed a great admiration for council officers and officials. They were knowledgeable and expert, and in a lot of cases they were delegated and tasked with many things, including taking many decisions that were considered operational or that were not considered to be of the scope or scale that needed a direct political decision from an elected politician. However, the primary role of a senior official in most cases is to advise, rather than decide, and where any decisions of a major or strategic nature need to be taken, they ought to be taken in line with the democratic mandates and priorities that have been established at the ballot box. The absence of locally appointed Ministers and a sitting Assembly to scrutinise the choices that Ministers make when big decisions are required is highly unsatisfactory.

Make no mistake, big decisions are going to be required pretty urgently, because following the setting of the recent budget by the Secretary of State, the Northern Ireland Fiscal Council has stated that some £800 million of cuts, savings or revenue-raising measures are going to be required to fill the budget gap. To drill down a little further, the education sector in Northern Ireland faces a 2.7% cut, the Department for Infrastructure is going to be around £146 million short of its estimated requirements for the financial year and the Department of Finance says that it is now a matter of trying to

“plot the least harmful course we can”.

I think Northern Ireland deserves better than simply plotting the least harmful course that can be plotted, and it requires some major political choices to be made about how budgets are to be balanced, services are to be provided and better outcomes can be achieved.

Those are the sort of budgeting and policy decisions that simply cannot be taken or cannot be addressed in the form of salami-slicing in line with the ministerial decisions taken in years past. So the measures in this Bill that will allow the Secretary of State to request advice and information on developing options for a sustainable approach to the public finances, including revenue raising, are necessary, if inadequate. I would just say that it risks an element of paralysis by analysis and consultation in Whitehall. It certainly represents a very poor substitute for the people of Northern Ireland and the good operation of the services that they depend on, and it falls some way short of the level of scrutiny that ought to be applied to the spending of public money.

In drawing my remarks to a close, we support this Bill, but what we support most of all is the best solution of seeing a swift return of the Assembly and the Executive. We would urge the Secretary of State and his ministerial team to continue to do all they can in that regard to bring about that much better situation.

14:12

[Sammy Wilson (East Antrim) (DUP)]

In my opening remarks, can I first thank the spokesman for the Opposition, the hon. Member for Hove (Peter Kyle), for what I regard—this is probably the death knell for him in his position—as a very balanced presentation of the situation we face in Northern Ireland? He recognised, because of the experience he had over the period when we were remembering the signing of the Belfast agreement, the balance that is required there, and the fact that devolved Government in Northern Ireland cannot operate without the support and consent of both communities and their representatives in Northern Ireland.

That is something I think the Minister has still failed to recognise: he does not understand. It is quite clear from some of his remarks today that he does not understand the deep opposition to the current arrangements for governing Northern Ireland, and the difficulties that those arrangements cause for the Unionist population. Quite frankly, we still see the arrangements—whether the Northern Ireland protocol version or the Windsor framework version—as ones that damage our ability to trade with the rest of the United Kingdom to which we belong, and that will lead to divergence in the long run between Northern Ireland and the country to which we belong.

While the Minister may be prepared to accept the compromise, as he says, of some EU law applying to Northern Ireland as the means of having what he described as an “infrastructure-free border”, we do not see it as an infrastructure-free border. An infrastructure is being built in Northern Ireland, and further infrastructure will be built. Indeed, as I pointed out during Northern Ireland questions earlier today, it is not just in Northern Ireland that we are now going to have that infrastructure; we are going to have it in Cairnryan, Liverpool and Holyhead for goods moving from Northern Ireland into GB. I am afraid that is not what he or I campaigned for when we campaigned to leave the European Union. I do not think he should expect Unionists to compromise on being part of the country that many of them fought and died to remain in during a terrorist campaign of over 35 years in Northern Ireland.

The Minister’s second point was that, despite calls for the Assembly to get up and running, he is concerned—I will quote his words back to him—

“about the long-term sustainability of public finances in Northern Ireland”,

as well as that the pressures are “extremely challenging” and the Northern Ireland Executive have “difficult …decisions” to make. However, he knows that even if the Executive were up and running, and working splendidly, and everyone was co-operating and prepared to make the hard choices, there still would not be enough money in the pot.

The Minister knows—he actually referred to this—that the Fiscal Council has already made it clear that, in relation to the application of the Barnett formula, Northern Ireland is the only part of the United Kingdom that falls below the needs assessment on which public finance, spending in Northern Ireland and the block grant should be based. We are below it, and we are falling further below it. We are continuing to fall, and the gap is getting wider. When that happened and it was identified in Wales, there was immediate recognition of the problem. Wales had not actually fallen below the percentage, although it was moving towards it, and the Holtham commission made recommendations that ensured not only that a floor was set for moneys to be made available in Barnett consequentials for Wales, but that there were transitional arrangements.

I think this is important, because a lie is being spread around Northern Ireland. The Minister says he is not hectoring us today about getting us back into the Assembly, but I am afraid he does plenty of hectoring when he gets across the water, including putting on Facebook, or wherever, about chanting with groups to get back into Stormont, when he knows full well that getting back into Stormont is not going to grow the purse, change the financial situation or make it any easier. The extremely challenging difficulties for long-term sustainability will still be there, so let us not fool anybody.

I do accept that the Assembly had some responsibility for the situation we are in, but when I was Finance Minister in Northern Ireland we always balanced our budget. In fact, we were able to get three-year rolling budgets, so there was certainty for Departments, and we were able to make efficiency savings of 3% almost every year. However, some bad decisions have been made, and the fact that Sinn Féin could not get any of the parties to agree to the budget proposals brought forward when the Executive was functioning is an indication that there is such a role there. The Finance Minister was not capable of delivering a budget on which we could reach agreement, hence the overspend that has occurred. The impact of all that is that even if the Assembly were up and running, the detriment to public services in Northern Ireland would not disappear.

Let us look at some of the implications of the current budget and draw some comparisons. This year, Whitehall Departments will have an increase of 1.8% in resource spending. People argue that is not enough—it does not meet inflation, pay pressures and so on, and I accept that—but in Northern Ireland resource spending will fall by 0.9%.

For education, the budget in England will go up by 6.5% in the next year; in Northern Ireland it will fall by 2.7%, and £100 million of that fall is on special education. Almost every week we see people coming to our constituency offices who are desperate about their youngsters, who need support because they are autistic or have attention deficit hyperactivity disorder, or one of many other educational disadvantages, yet they cannot get assessed, let alone get support. Of course, the pressure on teachers’ pay will further add to school budgets.

In health, over the period to 2024-25 spending in England will go up by 32.9%. In Northern Ireland it will go up by 18.1%. So, again, we will fall further behind even though we have the difficulties and waiting lists that we currently face.

In policing, the Government have recently been boasting that they have reached their target of 20,000 extra police officers in England. In Northern Ireland, despite the promises made in New Decade, New Approach, as a result of the budgetary pressures we have a fall in police officers to well below what Patten recommended was needed to police Northern Ireland.

To add to that, although the Minister knows that Northern Ireland is not being fully funded—the Fiscal Council has told him that—that the Barnett squeeze is getting greater and that the gap will increase, we are being told that if there are any Barnett consequentials for Departments in Northern Ireland this year as a result of, for example, the Government nicely agreeing to pay increases, Northern Ireland will not get them, because they will be used to repay the overspend on what is already accepted to be an underfunded budget. It was last year, the year before and the year before that—in fact, I think it goes right back to 2017. That is what we are facing.

Just last week, I spoke to a school principal who said, “If there’s a pay increase for teachers, as the education budget has been cut by the degree that it has, I cannot afford to pay it unless I sack teachers.” It will be the same with nurses and right across the public service. Indeed, at a time when cuts are biting, the Department for Communities has said that it has got a £27 million deficit, so it does not have the money to recruit the extra staff it needs to process benefits, because of the increasing demand for them.

Those are all the consequences. So given the scale of the gap, let us not pretend that, somehow or other, if the Executive were up and running tomorrow, fairy dust would just fall on Northern Ireland and all of those fiscal problems would disappear—they would not. That is not a reason for not wanting devolved Government back, but it is an indication that we should not be selling the lie to people in Northern Ireland of, “Get back into government and suddenly all of the problems that you are facing—in health, education, communities, policing and everything else—will disappear.”

One of the reasons for amendment 5 is that the DUP recognises that, in order to look at the long-term sustainability of public services in Northern Ireland, we need to know what the Fiscal Council is saying and put in place an arrangement—

[Mr Deputy Speaker (Sir Roger Gale)]

Order. I do not wish to interrupt the right hon. Gentleman, but Committee consideration will follow this stage, so I would be grateful if he confined his remarks to Second Reading.

[Sammy Wilson]

Thank you, Mr Deputy Speaker. I was not going to go into the amendment in any detail—we can do that later—but I just wanted to refer to the fact that the Fiscal Council had made its comments.

When we look at the Bill, as has been described by a party leader in an earlier comment in Northern Ireland, we see that most of it is actually about ways of raising finance and advising how there should be consultation. Clause 2 talks about the consultation on different ways of raising finance as if that is how we will fill the gap. That takes money out of an economy that the Government have already damaged through the protocol, with the difficulties that has caused to Northern Ireland businesses and the costs that people there now face as a result of it being more difficult to get goods from the cheapest source—GB—with which they would normally have traded. Now they have to buy more expensive, and probably lower quality, goods from an EU supply chain. There are also the extra costs on businesses, and indeed the extra cost on the public purse, because £500 million now has to be devoted to the trader support service to help companies over the hurdles caused by the protocol.

Is the answer simply to raise more finance in Northern Ireland? I accept that people in Northern Ireland have things such as free prescriptions that, it could be argued, we could well look at. I remember a debate about free prescriptions. As Finance Minister, I was not keen on them, but I was told at that stage—it was true—that the cost to be spent on administering the distinction between people eligible for free prescriptions and those who were not would hardly compensate for the amount of extra money.

However, let us look at the extensive source of revenue that we do have in Northern Ireland: the rates. It has been estimated that even if we increased rates by 107%—if we more than doubled them—which would have a massive impact on households in Northern Ireland, we would raise only about 5% more revenue to the block grant that we have at present. The argument could be made if rates in Northern Ireland were much lower than those in the rest of the United Kingdom, but actually they are higher than those in Manchester, Sunderland, Liverpool and many other parts of England. So it is not as if we do not already tax people in Northern Ireland where we can to a level that is commensurate, we believe, with their ability to pay.

Clause 2 is included in the Bill to say, as has been widely spread around Northern Ireland, “If the Assembly is not up and running, it is more likely that other ways of raising revenue will be imposed on people in Northern Ireland, so get your politicians back, because otherwise you’ll be charged for things for which you weren’t in the past, or given extra charges on things you are being charged for at present.” I must say to the Minister that that kind of blackmail is not the way to restore the Assembly.

The Assembly will be restored when, first of all, the terms of the Belfast agreement are adhered to so that the views of Unionists, as well as nationalists, are respected, and Unionist Ministers are not required to sit in the Assembly and implement the very arrangements that we then come here and complain will destroy us as a part of the United Kingdom. I hope Members understand that. That is what is being asked of Unionists: to go into the Assembly under court direction and implement the Windsor framework, even though we know that in the long term it will be detrimental to the Union. We will talk about amendments later, but departmental officials will have to make some very controversial decisions. That will require some ministerial direction, hence why we believe there should be provision in the Bill for ministerial direction of civil servants, so that difficult decisions can be made and we can try to make some reforms.

I will make one last point, which relates to one made by the hon. Member for Belfast South (Claire Hanna). Can we not look at ways to better use public money? I say that with some knowledge of the steps that Unionist Ministers have taken in the past in recognition of the fact that there are better ways. The Altnagelvin cancer unit, in the constituency of the hon. Member for Foyle (Colum Eastwood), is a good example. It was indicated to us—I was Finance Minister at the time and the DUP held the health Ministry—that we could not afford a cancer unit in the north-west and the Irish Government could not afford a cancer unit of their own in the north-west, so we co-operated. They provided some of the capital and we provided some of the capital. They provided some of the running costs—they still do—and we provided some of the running costs. So this idea that Unionists are not willing to look at how we can make reforms, take decisions and make public finance more sustainable is just not on.

I look forward to the day when devolution is restored and we can work in a co-operative way, but it will not happen until there is respect for the Unionist view in Northern Ireland. And even when it does happen, it will not be effective if the resources are not there to enable us to make the kinds of changes that are required.

14:32

[Colum Eastwood (Foyle) (SDLP)]

It is great to hear that the Democratic Unionist party now supports north-south co-operation. It would be good if we were to allow the north-south bodies to operate properly as well. I totally agree with the right hon. Member for East Antrim (Sammy Wilson) and the hon. Member for Belfast East (Gavin Robinson) about the deficiencies of the Barnett formula. The SDLP, many years ago, proposed moving away from the Barnett formula to a more needs-based approach. It is just a pity that DUP Ministers at that time campaigned loudly and actively against it. However, we are here now.

This is a Bill that nobody wants, least of all the civil service which is being asked to use these powers. We know why we are here: the DUP refuses to form a Government. Many of the arguments some of us are using today were used by the DUP when Sinn Féin pulled the Government down and kept it down for three and a half years. It seems to me that people cannot even learn the lessons they were trying to teach others. We know how that ended: Sinn Féin realised halfway through that boycott that it was doing nobody any good. The waiting lists were still getting longer and certain people were beginning to get the blame for that. My view is that we have a responsibility to all the people in all our constituencies, no matter what their politics are, to have a Government functioning and working together. I heard again today from the DUP that devolution cannot work without the consent of both communities. That is painfully true and obvious, but is it okay, then, to have direct rule, which is basically what this is becoming, operating without the consent of the nationalist community? That is what we are being asked to have, and that will have its own consequences as we move through the process.

The shadow Secretary of State for Northern Ireland, the hon. Member for Hove (Peter Kyle), rightly referenced the 25th anniversary of the Good Friday agreement—the immense change it has brought about and the bravery of that political generation to make very hard decisions and take very big steps, much bigger than those we are asking people to take today. Its impact has been profoundly significant for many people, particularly in my generation.

Over the last number of years, we have faced chaos in our politics inflicted by a Brexit vote somewhere else, because the people in Northern Ireland voted to remain by a majority. That has been the genesis of the crisis we are in today. We argued for a couple of years about the protocol and its implications. Now we have the Windsor framework, which gives us the opportunity to trade into both markets. We have had former American Presidents, the current American President, former US Secretaries of State and the current US Secretary of State, countless Senators and Members of the House of Representatives coming over and telling us that they want to help us by bringing jobs to Northern Ireland. There is not a single other place in the world where American politicians are saying they want jobs to leave America for. That just does not happen. It goes against the political current in the United States of America right now. This is a huge opportunity, and it is an opportunity that we need to grasp. Frankly, I do not understand why we cannot do two things at the one time.

[Paul Girvan (South Antrim) (DUP)]

I thank the hon. Gentleman for giving way. On the point he just made about investment into Northern Ireland, that was promised to us 25 years ago but the Republic of Ireland, with its fiscal taxation policy, sucked in all the inward investment that we were to get. We never benefited from the major companies that, over the last 17 years, went into the Republic of Ireland when they should have come to Northern Ireland.

[Colum Eastwood]

That is a very interesting take on the fact that next year the Irish Government will have a budget surplus of €16 billion and we are squabbling over the crumbs from London’s table. There is another question the hon. Member should ask himself: why are we not trying to join the thriving economic entity that is the Republic of Ireland? Our people would be a lot better off.

The point I was making is, in my view, very obvious. I accept that DUP Members still have some difficulty with some issues, and I am happy to sit down and work through them. I will speak to the Irish Government, the British Government and whoever we have to speak to, to help us to get over this hump. The reality, though, is that we are well capable of doing that at the same time as getting into government and dealing with the health crisis. I know we will not be able to solve all the issues overnight, but we will not be able to solve them by doing nothing at all. Why can we not sit down as grown-ups and work through the difficulties, while at the same time implementing the changes required to help people in Northern Ireland get off the waiting lists, to help people create jobs, and to bring in investment that keeps our young people at home instead of sending them off to work somewhere else? That is not beyond the wit of the political class in Northern Ireland today, given all the hard things that had to be done, including by the DUP, in the peace process we have had since before 1998. We can do this very, very simply. There is no logic any more in holding up the institutions of the Good Friday agreement so that we can deal with outstanding issues. We can do both at the one time.

The Bill and the budget are imposing huge cuts on the most vulnerable in our society. The extended schools programme is aimed at schools in disadvantaged areas and at kids who are the most disadvantaged in our society. It brings things like counselling for young people, breakfast clubs and after-school clubs. It is being axed because of this budget. We are axing free baby books for kids. Every year, 20,000 families are given access to free books and reading advice from the Book Trust, a vital tool we can give to our children. Anybody who has kids understands that teaching them to read as early as possible is a really important life skill. We are cutting that—that is where the axe is falling as a result of this budget.

We are also cutting special needs places in nursery schools. Little Orchids in my constituency, which looks after kids from two to four years’ old, was told a couple of days ago that it would have to halve the number of children that it can help in its facility. They are the people affected by this particular budget. We are also told that there will be no new school buildings or extensions. Many of the teachers’ and children’s classrooms are crumbling. None of that work will start this year, and we do not know at all when it will.

In all the discussions we have on radio stations, in TV studios and here about the need for health service transformation, as difficult as it will be, we have all bought into doing the hard things needed to make the health service more sustainable, to get 500,000 people off waiting lists and to make a health service that we can be proud of. Right now, we have a health service that is not free at the point of delivery because people cannot get access to it without paying. Many people in my constituency are going to the credit union to get loans that they cannot afford to pay back, so that they can have the vital surgery they need to live their lives in a normal and comfortable way. There is no space in this budget for proper health service transformation. Those 500,000 people will remain on waiting lists, which will grow and grow.

I made this point earlier to the Minister, but I will make it again: we can talk about the detail of revenue raising at any point, but I want to make it clear that the Irish Government, the British Government and the former Northern Ireland Executive all committed to expanding university places in Derry, which has been waited for and campaigned on for many decades. In any new funding model for higher education, that needs to be protected, and the opportunity needs still to be there for expansion of university places in Derry. If we are really serious about rebalancing the economy regionally and giving people the opportunity to create jobs and get employed in their own areas, that has to be our No. 1 priority.

[Mike Kane (Wythenshawe and Sale East) (Lab)]

The hon. Member is making a powerful speech, but he knows that his city is the only city on the island of Ireland without an independent university. We have campaigned for many years for the expansion of Magee, but it is not happening the way that we or John Hume envisaged it. What is his view on one day going for an independent university in the great city of Derry?

[Colum Eastwood]

I thank the hon. Member for his intervention and his work on this issue. There was a short period when we did not have an MP for Foyle in this Chamber making these points. The hon. Member and others stepped up on that issue, and we were very grateful to him. The people of Derry have been starved of a university since 1964. That has massively damaged our economic opportunities—that along with the bombing campaign that blew the place to bits. We are now 25 years on from the Good Friday agreement, and we still have not maximised that opportunity.

We have a university in Derry—we are clear about that—but it is not big enough and it does not do enough to attract the kind of students who, in turn, will attract the economic opportunities that we want. I have been clear with the leadership of Ulster University that people are very weary, tired and lacking in trust in that institution. The leadership needs to come up urgently with a plan to expand university places to at least 10,000 students or people will begin to look elsewhere, as the hon. Member says. We must be realistic and serious, and we must make this happen because we cannot wait any longer to have proper university provision for the people in my city.

We are now basically in a period of direct rule, and we are moving inch by inch closer to London-only rule. That flies in the face of the Good Friday agreement and every single agreement that we have made since. I urge this Government to think carefully about what happens next, because this situation cannot be allowed to run and run. If we are not to have institutions at Stormont, and if locally elected people are not to have representatives running the place because they are denied that opportunity, the British Government need to look seriously at a greater role for the Irish Government in the affairs of Northern Ireland. I say that advisedly because in a number of periods when we were denied institutions at Stormont, it was only that promise that encouraged some people to get back and to form a Government representing all the traditions on the island. That is well worth considering.

We are knocking on doors and speaking to people. An awful lot is said about Unionist concerns, which we listen to and try to be respectful of, but many of the people we speak to say, “Why would we have any faith in the DUP to work with nationalism? Why would we have any faith in Stormont to deliver for us?” People are beginning to think differently about their future. I will argue every day to end the divisions on our island and to build a new Ireland, but I caution those who stand up and talk about the precious Union a lot in his place that they are opening a door to something that they might end up regretting, because more and more people are moving away from support for Stormont. I do not want that to happen. I think we can do two things at once. We can have locally elected people running the institutions of Northern Ireland. There is a better way to do this in the longer term.

[Sir Jeffrey M. Donaldson]

The hon. Member is touching on a very important point, which I think is overlooked. The UK Government and Unionism recognised that a hard border was not the solution in relation to Brexit. Why? It would have undermined nationalist sensitivities in relation to the agreement and the political institutions. We sought to find a way forward that respected the integrity of the United Kingdom and avoided a hard border on the island. Even the Taoiseach has recognised that the protocol went way too far in creating an Irish sea border. Although the hon. Member is right that nationalist sensitivities must be given regard, so too must Unionists’ sensitivities because consensus is the way forward, as the former Member for Foyle John Hume often said from that seat.

[Colum Eastwood]

I have tried my best to understand the concerns of Unionism, and I think the European Union and the British Government have as well, to be fair. That is why we have the Windsor framework. If there are still outstanding issues, let us talk about them. Even when we were threatened with a hard border, we did not walk away from government. We did not stop working in the institutions. We wanted to sit down and continue to work with our neighbours—even those who we disagreed with—because that goes right to the heart of the Good Friday agreement.

Walking away and boycotting will solve nothing, in our strong view. If there are outstanding issues, and if there are solutions that do not impact upon the principle of protecting all-Ireland trade and avoiding a hard border, we will be open to looking at those and to working with the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson) and his colleagues to achieve some modicum of change around that. My appeal to him is this: let us sit down, work together in our substantial common interest, work the common ground, get back into Stormont and try—as hard as it might be—to begin to fix some of the problems that beset all our people.

14:48

[Gavin Robinson (Belfast East) (DUP)]

I appreciate being called earlier than I had anticipated, Mr Deputy Speaker. We had a brief conversation earlier, and despite what you said, the prospect of another four and a half hours of debate is probably too tantalising to ignore. Although normally I do not speak for long, I may take the opportunity to speak a little longer this afternoon. [Interruption.] I jest.

Like others, I lament the fact that we are debating this Bill this afternoon and dealing with a Northern Ireland Office that, yet again, I am sorry to say, is missing a crucial opportunity. It is a Northern Ireland Office that has lost any sense of strategic direction; it has lost the ability to engage, understand and resolve some of the pressures that we have in Northern Ireland. I lament the fact that the relationships from which we benefited over the last few decades no longer exist, and I lament, more than anything else, the fact that, while the Bill has been described this afternoon as legislation that closes a constitutional gap—or continues a governance gap—that opportunity has been 100% missed.

It did not need to be this way. The Northern Ireland Office had been actively engaged with the Northern Ireland civil service over the last three or four months, and had drafted provisions for the Bill that would have given the Secretary of State step-in powers and the opportunity to assist with some of the difficult decisions that are facing our Northern Ireland public service Departments. However, the NIO actively chose to leave those provisions out of the Bill. I know that this is not a Committee stage, but because new clause 5 has not been selected, I will say now that we tabled it to highlight the point that the choices that now rest with permanent secretaries in Northern Ireland are unfathomable. The opportunity was there for political direction on the taking of decisions when political direction was required, but those in the Northern Ireland Office have chosen not to take it. They will continue to say what they have said over the last few months—“It is not for us to make political choices”—but that is a political choice that they have made.

When the Government raised the rates in Northern Ireland this year, while still talking about revenue raising and the need for more finance to come from Northern Ireland, they made a political choice. They increased the burden on homeowners, domestic ratepayers, by 6%, and excluded businesses by freezing their regional rate. They made a political choice. When they talk about revenue raising, they know that some £1.5 billion to £1.7 billion a year is raised from revenue. If every domestic and non-domestic ratepayer in Northern Ireland paid 50% on top of their bills that are due next week, that would still not cover the shortfall that faces Northern Ireland Departments as a result of the budget given to them by the NIO.

When that budget was delivered last week, it was delivered in the explicit knowledge of the decisions that permanent secretaries would have to make, but cannot make. Everyone in the Chamber is aware of the legislative preclusions that prevent them from making those decisions. Members know the impact of the Buick and JR80 judgments. They know that the permanent secretaries cannot do that. They had indicated in advance to the Northern Ireland Office—to the Secretary of State and the Minister of State—that the budget that they were handed would mean they would have to take decisions that would conflict fundamentally with the statutory obligations and duties that they have to undertake. They cannot do it.

While the flexibility on the £279 million is useful in one sense, it is hugely dangerous in another, given the damage that it will do through the breach of parity in public pay awards between Northern Ireland and the rest of the United Kingdom. Anything that is agreed in the forthcoming weeks and months in England will benefit public workers in England but not those in Northern Ireland, and that gap will grow. The flexibility is useful, but given the direct knowledge of the underspend and the challenging decisions that will have to be taken, it is outrageous that that is the sort of offer that our Departments have received.

[Stephen Farry (North Down) (Alliance)]

I agree with much of what the hon. Member is saying about the failure of the Northern Ireland Office to address the governance gap, but does he not think it is a little bit difficult for people to hear him say such things when his party has the power to address all the concerns he has been raising if they return to the Executive? While he is right to criticise the Government, surely he should also exercise some self-reflection on the role of his own party, because all those ills could be cured by him and his colleagues tomorrow.

[Gavin Robinson]

I find it amazing that the hon. Gentleman has made that point. He knows it is the biggest falsehood that is being peddled today, and it was addressed earlier by my right hon. Friend the Member for East Antrim (Sammy Wilson). If the Executive were up and running tomorrow, the fundamental damage being caused by the budget and the fundamental choices having to be made would still be there, but the resource would not. Departments are saying today that there is an £800 million shortfall in their ability to deliver, and that they will now have to take decisions that conflict with their statutory obligations, and that same choice will be there tomorrow unless the Government say that they will reflect on the systematic and systemic underfunding of the Northern Ireland budget, and will recognise that the Barnett formula must be assessed on the basis of need. Unless that happens, the choices that are there today will be the choices that are there tomorrow.

Let me spell it out. What do we know from the Department of Justice? It is hundreds of millions of pounds short of what it needs. The police alone do not have enough money to cover last year’s shortfall, let alone an additional £35 million shortfall this year. Where can they make the cuts? They can make them through headcount and non-pay. On headcount, we know that devolution was restored in 2020 under the New Decade, New Approach agreement, which recognised that policing numbers needed to reach 7,500. In March this year the figure was 6,700, and it is projected to be 6,400 in March next year. That is the sort of choice that is available today to a permanent secretary, and would be available tomorrow to a restored Government.

Earlier today, the Minister of State was answering questions about the cost of living crisis, but yesterday we heard from the Department for Communities about the extent of its shortfall. A third of the social homes that were planned to be built this year cannot be built: 2,000 were projected, and 1,400 will be delivered. No money is available for the new health assessments associated with benefits, and there is not enough money to progress the assessment of benefit applications. That is what has been delivered by the NIO: choices that are there today and would still be there tomorrow if there were a return to devolution.

Then there is the enormous shortfall in the Department for Infrastructure, where the permanent secretary is highlighting her statutory obligations and the money she does not have in order to meet them. So what are her choices? To stop gritting the roads? To stop treating waste water? How often do we hear about the importance of climate issues and looking after our environment? But that is one of the choices available to the permanent secretary in the Department for Infrastructure. Another is to turn off the street lights. I do not think that the Secretary of State or the Minister of State or the NIO is interested in streetlights. The only thing in which they seem to be interested at present is gaslights, because the politics of all this has been about gaslighting people in Northern Ireland. What is psychologically questioning our understanding of how finances work, and telling us that we are overfunded when we know that we are structurally underfunded—standing in this Chamber and saying, “Oh, but Northern Ireland gets 121% of what people in England get”, when we know that that is less than what Northern Ireland needs—if it is not gaslighting? That is the diet that we have had over the past number of months, and it seems certain that that is the diet that we are going to continue to get.

The Northern Ireland Fiscal Council has been explicit. When I talked about the Northern Ireland Fiscal Council in this Chamber in January and last year, whoosh, it went straight over people’s heads. It meant nothing. I know that sometimes the figures in these documents are boring, but they are crucially important in terms of the ability to deliver public services for everyone in Northern Ireland.

I represent a constituency that has some incredibly affluent areas, but it also has some incredibly deprived areas where social deprivation is a real thing. Wards in my constituency feature in the top 10 most deprived wards in Northern Ireland. In the Mount ward, at the bottom of my constituency, just off the Newtownards Road, 25% of children are leaving primary school without basic literacy and numeracy skills. Forget the 11-plus—they are going on to secondary school without the basic ability to read, write and count. What has this budget delivered? It has delivered an end to the extended schools programme and an end to free books for babies. Just a few months ago, the Northern Ireland Affairs Committee visited EastSide Learning in my constituency. The chairman cheekily asked, “I see those books—the spines haven’t been broken. Does anyone read them?” He was informed that they were brand new books, but the Department of Education is not going to be able to give brand new books to children in my constituency any more. It is outrageous.

The Pathway funding, which is about ensuring the social, emotional and cognitive development of young children before they get to nursery and primary school, is not going to be there. The Department of Education has said that from June there is no money available for such vital developmental early years intervention. Whether it is the Dee Street and the Ballymacarrett youth centre or the Bloomfield Community Association youth centre, all of these interventions matter. The public services that are delivered in Northern Ireland matter, and this budget fundamentally constrains the opportunity to provide for the needs of those children and our constituents right across Northern Ireland. The opportunity was there, and it should be there, to make a difference.

I want to make this point with as much power as I can: we can debate and talk every day of the week about the pressures that exist with the Northern Ireland protocol, the Windsor framework and the impediments to the return to devolution. Whether people agree with me on those issues or they ignore those issues, that is fine; we will continue to work for resolution. But the point needs to be understood that we cannot and will not have sustainable government in Northern Ireland if we do not have sustainable finances alongside a return to devolution.

The idea that any elected representative is going to stand up in government to stand over the dismal budget that has been provided is for the birds; it is not going to happen. I want to see Northern Ireland work. I want to see Northern Ireland as a place where all communities within our Province are at peace with one another and enjoy the benefits of the country that we have the privilege to live in. These issues need to be resolved and that can happen only when the finance is there to deliver positively for those people.

[Sir Jeffrey M. Donaldson]

My hon. Friend is making an excellent contribution to the debate and I fully support what he has said about a needs-based approach. Indeed, I think of the work of the Atlas Women’s Centre in Lisburn, in my constituency, which has used Pathway funding to help some of our youngest children to develop the skills they need for mainstream education. Does my hon. Friend agree with me that in seeking to change the way that our public services are funded, it is essential that in Northern Ireland we also recognise the need for the reform of those public services and that part of what we need from Treasury is investment for reform?

[Gavin Robinson]

The truth is that the shortfall from last year and the shortfall in this financial year need to be covered—that is the short term. The medium term needs to be about getting reform agreed, and the long term needs to be about sorting out how Northern Ireland is funded and providing a stable way for doing so.

There are huge opportunities. Some people like to dismiss it and some people do not want to listen to it, but the last thing we want to see is a return to devolution where the foundations are unstable. We want sustainable government in Northern Ireland. We want the ability to deliver proudly positive public services for the people of Northern Ireland, and we want to resolve the issues that have created the impediment thus far. There is nothing new in that. Sometimes it takes quite a while for people to hear and listen.

We are getting there. I am sorry that we are having to go through another Bill like this and that opportunities are being missed to deal with delivery for the people in Northern Ireland, through one way or another. We want to protect public services. We want to protect the street lights and end the gaslights. It would be nice to have a debate on these issues where we could talk practically and factually about what the impediments are, which all of us work to resolve.

15:06

[Stephen Farry (North Down) (Alliance)]

It is a pleasure to follow my neighbour, the hon. Member for Belfast East (Gavin Robinson). This debate is happening in something of a twilight zone, in the sense that we have a twin budget and governance crisis. Frankly, neither is being adequately addressed today.

The Northern Ireland Office is operating in hope, and possibly expectation, that at some point the DUP will return to the Executive of the Assembly. Indeed, there is an overwhelming logic to that. If people want to make Northern Ireland work, then the Assembly and the Executive have to work, and that has to be seen as the overarching issue. Any notion of a democratic deficit that may happen elsewhere pales into insignificance compared to the current democratic deficit that we are facing.

As much as I agree with parts of the analysis given by my neighbour, the hon. Member for Belfast East, around the fact that the Northern Ireland Office is not stepping in on governance, others are not stepping in on governance either. I appreciate that the overall context is difficult—that may not change—but governance is core to solving this issue. We are in a frankly intolerable situation in that regard.

If my colleagues in the DUP are genuine about returning to the Assembly—some optimistic voices expect them to reach that conclusion in the next weeks or months—the longer they leave it, the more damage is going to be done to Northern Ireland. My message to them is, if they are going back, they should tell us they are going back and let us get on with it. If they are not going back, then they should say so and let us put in place alternative governance arrangements. The drift is killing us, both metaphorically and literally.

In terms of governance, the guidance is insufficient and in some ways contradictory. The Government may think it is perfect clearly, but it is evident that the Northern Ireland civil service does not think that. For example, we have a situation where our guidance is telling civil servants to act in the public interest, not to undermine statutory services or commitments, not to take major public sector decisions and to avoid long-term damage. It is hard to see how taking cuts is consistent with any of those criteria, but that is what they are now being expected to do.

I fear we are, yet again, at something of an impasse. That will lead to two potential outcomes: first, we will see certain decisions being deferred till later in the financial year. If decisions on cuts are taken even later in the year, the pain and impact becomes even sharper than it would be today. Alternatively, we will see a situation where it is impossible for them to live within the spending envelope that has been allocated, and we will see yet another overspend at the end of this financial year, with all the associated complications for planning that will flow from that.

The current situation we are facing is contributing to lengthening waiting lists and will reinforce educational underachievement, block the skills pipeline and compromise our ability to tackle economic inactivity. To date, the civil service approach has been to focus almost entirely on the very narrow ground of what are viewed as non-statutory activities—discretionary spending, in other language—but that is often some of the most effective spending, as it is often aimed at early intervention or prevention, which goes a long way to addressing steeper cost pressures that may emerge elsewhere in the public sector later in the process. For instance, if we do not address mental health in the community, we end up with more people having to be admitted to secondary care, which is more costly, and the same goes for skills and educational underachievement.

I recognise that this is a genuine dilemma for the Government and that we do not want a drift to formal direct rule because of all the implications that flow from that, but I must say to them that the current status quo is unsustainable and something must give. This is not the same context as that between 2017 and 2020, when there was a much more stable financial environment. I appreciate that direct rule is not palatable, and if it does have to happen, there will have to be an Irish dimension to it—people will have to face up to that. I clarify, however, that that is not joint authority, which I consider to be a different concept outside the context of the principle of consent. However, a consultative role for the Irish Government in direct rule has been established going back to the Anglo-Irish agreement, and, again, if people are uncomfortable with that reality, they know the options open to them to stop that happening.

On the finances, I recognise there are major structural problems in Northern Ireland’s public sector and expenditure profile. Some of that has been self-inflicted: the roof has not been mended while the sun was shining in previous years. A lot of decisions around reform have been ducked and opportunities have been missed by previous Executives. At the same time, however, we must recognise that there is a wider context. I do not want to labour this point today, but our current crisis in Northern Ireland is happening in the context of the UK public finances, which took a major hit towards the end of last year, and that has had a ripple effect throughout UK public spending, including the Northern Ireland block grant. We also, of course, have the Barnett squeeze, which I will discuss later.

Given all I have said, it is true that this year’s budget allocation will more or less be along the lines set out, regardless of whether an Executive were in place. It is, however, utterly disingenuous to say that the presence of an Executive is irrelevant in that regard. The governance gap fundamentally matters: without an Executive there is not a process for managing the pressures as efficiently and effectively as possible. That matters much more in the context of a crisis than when there is a surplus. It is like when a business is falling apart and running out of options and all the finance directors and the managing director have left their posts and others are trying to make do as the situation develops. The impact of cuts will be sharper without an Executive, because there cannot be early decision making on difficult decisions—I have made that point in relation to the civil service guidance. Some decisions cannot be taken because the governance structure is not sufficient, while other decisions will be deferred, and there will be a lack of strategic approach. Also, early intervention and prevention in particular are being targeted for cuts given the absence of a wider programme for government and a strategic framework. We will be storing up even greater problems in our public sector for subsequent years; the legacy of what is happening at present may be with us for a generation unless we swiftly get a handle on it.

We have long since lost the opportunity of a three-year multi-year budget, where we could have had planning from one year to the next and had some degree of stability and certainty in finances, allowing some long-term decision making. Crucially, with an Executive in place we would be in a much better place to go to the Treasury and ask for a financial package, and indeed make the case in relation to the Barnett squeeze. But in the context of a vacuum, all we will be looking at is cuts after cuts and decline and more decline, lost economic opportunities and damage to our public services.

In terms of our economy, this comes at a time when people want to do business with Northern Ireland. We have had the Good Friday agreement 25th anniversary, and I commend the Northern Ireland Office on its contribution to that, alongside many others, but people are now talking about a prosperity decade lying ahead, and the Government have welcomed that. We are having a trade conference in Northern Ireland in September, and Joe Kennedy III, the US economic envoy, has offered to bring a trade mission to Northern Ireland. All that is sitting there for us, but unless we have political stability and are investing in our skills, infrastructure and research and development, we are not going to be able to take advantage of those opportunities. They will not last indefinitely: there is a sweet spot at the moment and we must seize this opportunity. Instead we are seeing some of the key economic drivers being cut and undermined and, rather than taking opportunities, we are going in the opposite direction, and things are going to be getting even worse.

We must look to ways in which we can break this cycle, and all of this requires an Executive to be in place, but for us there are three ways in which this can be done. First, we must look for an invest-to-save transformation package for Northern Ireland. Most people recognise that we need to transform our public services to invest in our economy. There will be a lot of scepticism around this, and I have heard, for example, the comments of the hon. Member for North Dorset (Simon Hoare), Chair of the Northern Ireland Affairs Committee, about previous packages. We will have to learn the lessons from previous interventions and we will have to accept a lot of conditionality if that were to come. But unless we escape the cycle of cuts and the platform we are on, we are not going to transform our public services and invest in our economy. So we need to have that conversation. My party has put forward some proposals to the Government and I hear other Members talking in similar terms. We need to come together as political parties, ideally with a devolved Executive, to make this case. If that is to happen, it will need to be tied to a plan, which we have in place, including reform, that we stick to over multiple years.

The second area is inefficiency in our economy. That includes the cost of managing intervention in society and looking to other areas such as what we are doing on the health service. There are counterproductive, knee-jerk reactions to the budget crisis. For instance, the more we use agency workers, the more expensive that becomes, rather than investing in long-term staff, which is much more cost effective—that is counterproductive in terms of costs. Domiciliary care is necessary to take people out of hospital beds, which are more expensive, but, again, that will be sacrificed in a difficult budget setting—so, again, it is very counterproductive. In education, there is duplication between what happens in post-16 school settings and in further education. That is not sufficiently streamlined. We estimate that there is potentially £70 million in duplication there, which could be addressed with a proper 14-to-19 plan.

Finally, there is the Barnett squeeze issue. There must be an assessment in the work of the Fiscal Commission; much more work needs to be done on that, but we need an Executive to be batting for us with the Treasury to make that case for a different approach.

For me, the budget crisis is by far the biggest political issue facing Northern Ireland. With respect to my colleagues, it is a far bigger issue than the Windsor framework. I regard the Windsor framework as now being a done deal, and I welcome it: it is a progression from the original version of the protocol. There are issues to clarify on the margins, with more detailed guidance, but the fundamental structure is in place and we need to move on. To some, the issues being debated are relatively abstract and pale into insignificance compared with the impact on people’s everyday lives in terms of health and education.

Again, I say to Unionist colleagues: the best way to secure the Union is not through a narrower and narrower circle, based on defending an abstract notion of sovereignty; it is by making Northern Ireland work. The Union is based on the principle of consent. That lies in people seeing Northern Ireland working, and without an effective Executive and Assembly, they are getting the message that Northern Ireland is not working. From their perspective, that narrative needs to be turned around very quickly, rather than continuing the stand-off on the increasingly narrow ground of the Windsor framework.

15:20

[Jim Shannon (Strangford) (DUP)]

Thank you for calling me, Mr Deputy Speaker: as so often in this House— and there is nothing wrong with this, by the way—I am called last, but always very pleased to make a contribution to the debate.

My colleagues who have preceded me outlined the precarious situation we are in due to the punishing budget that has been set. The Minister may well say that that is a different debate—and perhaps rightly so—but there can be no other topic. Interim arrangements within which the Secretary of State will continue to act in the absence of the Assembly can be acceptable only if the Secretary of State intends to act, instead of sitting and watching foundational aspects of the country crumble, in an attempt to strongarm Unionists into accepting an incomplete and damaging framework.

We are happy—I state this very honestly and truthfully— to work with the Prime Minister, and with the Secretary of State and Government, to find a workable solution, but there must be a massive effort to find that solution, with engagement that understands the position of Unionism. I understand that the mechanisms in place need the assent of this House to continue. However, the question that Northern Ireland MPs must ask themselves today is whether we are willing to play a part in this distraction from the harm that Government are seeking to do to Northern Ireland and their people, who dare—that is us: we dare—to demand parity of esteem within this United Kingdom of Great Britain and Northern Ireland. Obviously, different political parties are making their plea to find a way forward, and we have different interpretations of that, but we are all trying to secure a way forward for everyone.

In preparing for today’s debate on the Bill, I met a number of playgroups in my constituency to discuss the interim arrangements. I want to flag the removal of the pathway fund for early years, due to the ridiculous funding cuts faced by the Department of Education under the budget, which is only one of the harms that I am concerned that this Bill will perpetrate. A constituent of mine emailed me in the last two weeks regarding the likelihood that the pathway fund project that her child attends will cease at the end of June 2023. This is a massive issue in my constituency. I have met a number of playgroups over the last week or 10 days, and they have all made similar requests. I quote this lady:

“The project offered by the local provider helps support the social and emotional, cognitive and physical development of my child, using a holistic approach, delivered in a safe and engaging environment. My child should not have to miss out on being able to access this service which provides them the opportunity to learn and develop because of the removal of the Pathway Fund in our local community.”

She continues:

“As parents we continue to be reminded that the early stages of a child’s life is the most important and we inevitably try our best to ensure our children have the best start in life. Opportunities to access and engage in projects that support, not only my child’s development but my own as a parent, are not readily available within this area. I am significantly worried about the negative impact the loss of the Pathway Fund will have on my child, our family and the local community.”

This debate on the interim arrangements Bill gives us the opportunity to highlight this issue. The same concern has been replicated in my constituency of Strangford by more than eight playgroups that have contacted me. Early years development, as outlined in the Prince of Wales’s groundbreaking report, is absolutely essential—there is not an MP in this House, and certainly not on the Opposition side of the Chamber, who does not recognise that. This situation will have a dire long-term effect on the children in my constituency, as well as throughout Northern Ireland.

I had three boys. They are young men now—35, 33 and 31—but when they were small, they attended the playgroup and nursery. I could see the engagement at an early stage that my boys had at that playgroup, which is similar to the one I have mentioned. It gave them social engagement and the chance to build friendships. They kept those friends from nursery and the playgroup the whole way through to primary school and secondary school, and today, in adult life, they still have those friends.

I have often said that Northern Ireland has been used as Europe’s political football to score points. When I look at my children’s education, I can see how vital it is, and yet children’s education will potentially be reduced. The Secretary of State for Northern Ireland will have received my meeting requests, which I sent to him just last week, to discuss this very issue. Following that action, let me say that the education and future of our children is not, and can never be considered—I use these words deliberately—as cannon fodder. Continuity funding is what we are requesting, and it needs to be allocated. That is my plea today on behalf of parents throughout my constituency and across Northern Ireland, including in constituencies whose MPs do not even take their seats here—we are here to advocate for them as well. This interim arrangements Bill allows for things to continue. The view of Unionists on the ground in Northern Ireland who I have spoken to is that they are to be punished by the Government here.

The hon. Member for Foyle (Colum Eastwood), who is not here—I am sure he is not too far away—referred to the Republic of Ireland as the place we should be looking towards. I will give the House a couple of wee facts about that. In the Republic of Ireland—which is where he seemed to indicate he wishes to be—anyone who wants an appointment with their GP has to pay €45 to €60 each time. If they have to go to accident and emergency, they pay €100 every time. Anyone 16 or over who has to stay overnight in the hospital pays €80, while the cost of living in the Republic of Ireland is 21% higher than in the United Kingdom. And anyone who wants a Big Mac from McDonald’s—I am not a fan; I do not buy them—will have to pay £2 more in the Republic of Ireland than they will in Northern Ireland or across the United Kingdom. Those are just examples of that paradise that the hon. Gentleman refers to—which is not a paradise at all—so let us keep things in perspective when we look at costs.

I spent last weekend, as I know my colleagues also did, at community events and meetings with constituents. The huge majority, reflecting that opinion, urged us to work for a solution: to get back to Stormont while standing firm for Unionism. That is the key, and it is disappointing that, while we are pushing for a solution that recognises the position of Unionism where it is, we are unfortunately not getting the reply from Government that we would wish for. That is the challenge for the United Kingdom Government and the Minister of State, and that what we are attempting to do. I humbly ask my Government to work with us and not against us to find the solution to the difficulties for our businesses and to legislate for our constitutional position, so that we are not at the whim of Government and whatever position they have taken that most expediently deals with the Northern Ireland issue.

It is important to put on record where we are with the Windsor framework. One of the reasons why, at this moment in time, my party has not accepted the Windsor framework is that we have sought legal opinion on whether it is worth the paper it is written on. The legal opinion from one law firm is that it is not. The Loyalist Communities Council, the Orange Order and the Unionist Forum each sought a legal opinion from three different law firms, and every response was the same. The Stormont brake is not worth the paper it is written on. The European Research Group, of which the Minister was once the leader, also sought a legal opinion, and the response it received is that the Windsor framework is not worth the paper it is written on. I have great respect for the Minister, but what a disappointment it is to find that his opinion today is so different from that which he had when a member of the ERG.

I understand the necessity for this Bill, but the Government have to take a giant step to embrace Unionism and its viewpoint. Northern Ireland Unionists are being treated abysmally.

[Sammy Wilson]

It is not just a case of asking the Government to embrace Unionism. This is about the Government standing up for the country they claim to govern, because through the protocol and the Windsor framework they have handed responsibility for lawmaking to a body outside the United Kingdom.

[Jim Shannon]

Those words are salient. I am sure the Minister is taking note, and hopefully he will give a positive reply. My right hon. Friend is right. We are clearly second-class citizens.

This punishing Bill hurts not only Unionists but everyone in Northern Ireland. If I am to endorse the Bill, which allows the Secretary of State to continue wielding the necessary powers, I ask for an assurance that the extension will bring about a signal change, which the Government are currently not doing. As my right hon. Friend said, this Bill causes great concern even to the staunchest British heart in Northern Ireland. What are we clinging to? That is the question he asked.

I remind myself of those who shed their blood to protect Northern Ireland and the United Kingdom, including many relatives of mine. Every year we celebrate the anniversary of the Ballydugan four, who were murdered by the IRA 33 years ago—no one was held accountable. My cousin Kenneth was murdered by the IRA—no one was held accountable. Billy Montgomery’s son Stuart was murdered by the IRA in Pomeroy—no one was held accountable.

All these people gave their life, and their family’s lives, for this great United Kingdom of Great Britain and Northern Ireland. In their name and memory I once again ask that we are treated justly and fairly, because we have shed our blood and served in uniform for this country. I served in the Ulster Defence Regiment and the Territorial Army, and my right hon. Friend the Member for Lagan Valley (Sir Jeffrey M. Donaldson) served in the Ulster Defence Regiment too. We are not afraid of serving in uniform because it is the right thing to do. As British people, we think we should do that, and many others do too.

When this extension is granted once again, as I am sure it will be because of the Government’s strength, I urge the Government and the Minister to take this fresh opportunity to engage with constituents and work for the benefit of the whole Province, both those of a Unionist persuasion, as we are, and those of a nationalist persuasion. I love this country, this great United Kingdom of Great Britain and Northern Ireland, and I say we are better together, but that means everyone being equal, and at this moment we are not.

[Stella Creasy (Walthamstow) (Lab/Co-op)]

On a point of order, Mr Deputy Speaker. Have you been notified of any change to the business, either today or tomorrow, in the light of the announcements in The Daily Telegraph—I believe a written ministerial statement has also been published—about the Government’s proposed fundamental changes to the Retained EU Law (Revocation and Reform) Bill? We have debated the Bill at great length in this place, and I understand from The Daily Telegraph that the Business Secretary is proposing changes to regulatory reform, in addition to deleting certain regulations, but that has not been notified to us.

I know you will be as concerned as I am about parliamentary scrutiny of any substantial changes, and I am sure the Business Secretary would not wish to evade that scrutiny in taking back control to this place so that we are able to understand what the Government intend. Have you been informed of whether we, as parliamentarians, might have an opportunity to scrutinise any of these proposals?

[Mr Deputy Speaker (Sir Roger Gale)]

The straight answer is no. Mr Speaker has repeatedly made it plain that he expects information to be relayed to the House before it is announced to the media. However, from what the hon. Lady has said, it sounds as though a written ministerial statement has been made. There has been no indication to the Chair at this stage of any change to the business. That may, of course, change tomorrow.

15:34

[Tonia Antoniazzi (Gower) (Lab)]

I feel an enormous sense of déjà vu as I stand here once again to speak about Northern Ireland. As was mentioned by my hon. Friend the Member for Hove (Peter Kyle), the shadow Secretary of State, we will not be opposing this Bill today. It is vital that, in the absence of an Executive, public services continue to function to support the people of Northern Ireland.

Like other Members across the House, I want to pay tribute to the civil servants who have spent more than a year working in these testing circumstances; it is not ideal, but it has been necessary. The removal of the six-month limit of this legislation will at least allow for continuity of governance as we hopefully move closer to the restoration of power sharing. The fact is, however, that these civil servants are confined to “business as usual” and are unable to take any new or bold decisions. Such decisions would be at the feet of Ministers and subject to scrutiny by politicians elected by the people of Northern Ireland to represent their interests. Without a functioning Executive, key levels of scrutiny from Committees are missing from those big decisions.

Public services in Northern Ireland are under severe pressure, with the impact of that felt throughout all of Northern Irish society. Just last week, for example, it was reported that since 2015 about 10,000 children have not been fully inoculated, with workforce shortages and delivery capacity in GP practices being given as the reasons for that. Deep-rooted issues such as that require proactive solutions, which should rightly be made by elected officials.

Furthermore, as was highlighted in Northern Ireland questions earlier today, the significant cuts included in the Northern Ireland budget are of great concern. I am grateful that the Secretary of State has included measures in this Bill that will allow for departmental accounts to be laid before Parliament for some scrutiny, but ultimately such scrutiny would be best applied by those on the ground in Stormont, who are answerable to the people of Northern Ireland. The Northern Ireland (Executive Formation etc) Act 2022 allowed the Secretary of State more time before calling an election in Northern Ireland. I would welcome hearing what steps he plans to take during this time to ensure that by the time of the next election, a functioning Executive will stay in place.

Despite the introduction of the Windsor framework, this deadlock has yet to shift and the people of Northern Ireland are suffering the most negative impacts of that. It is clear that there is a gap between the Government and the Unionists, which must be bridged in order for progress to be made. Dialogue between the Government, the European Union and the Unionist parties must continue. Of course, any way forward must take into account the nationalist communities, such is the nature of power sharing.

The recent celebrations for the 25th anniversary of the Good Friday agreement should highlight how important it is that we prioritise the restoration of power sharing and of a functioning Executive. I encourage the Secretary of State and the Minister to do all they can to try to push matters forward. I also ask that they work with the Prime Minister to ensure that he shows that he is fully committed to the restoration of power sharing. We cannot afford to spend another year debating issues that the devolved Administration would usually cover, while public services decline further and the cost of living crisis deepens. This Bill ensures that there is enough governance for now, but I sincerely hope it will not be needed for much longer.

15:34

[Mr Baker]

With the leave of the House, I rise to close the debate, and I thank all those who have participated in it. Once again, we have seen that on the main substance of the Bill there is wide agreement. There is agreement that it is necessary but regrettable, as we continue to seek to avoid the governance gap.

I will now seek to respond to as many points as I can. The shadow Secretary of State raised the issue of some difficult decisions being too much for officials. We recognise that the Bill is an interim arrangement. It clarifies the powers that civil servants need in order to maintain public services in the absence of an Executive. We recognise that civil servants will be uncomfortable taking some of the difficult decisions that are needed. Indeed, it is possible that they will feel unable to take them, but that, of course, is why we need the Executive back. I am aware that we are sounding like a stuck record, but getting the Executive back is what we are seeking to do.

Before I go any further, I will just say to the hon. Member for Gower (Tonia Antoniazzi) that I know the Prime Minister would want me to say that he is fully committed to the return of devolution, but that is a point to which I shall return later.

My hon. Friend the Member for North Dorset (Simon Hoare), who chairs the Northern Ireland Affairs Committee, asked about advice. He raised a great point and I am happy to clarify that it is our intention that the options developed for budget sustainability will be shared with the new Executive, and we hope that the new Executive will act swiftly to implement such measures. Further to various points that he made in relation to direct rule, I am absolutely clear that the Bill does not give us any powers to implement measures. I hope that is helpful to my hon. Friend—it is just the powers of the Secretary of State to direct that there should be advice and consultations, which would fall away.

The hon. Member for Gordon (Richard Thomson), who speaks for the SNP, made a speech to which I listened very carefully. I am happy to say that, on this occasion, I did not spot any areas where I disagreed with him, but I shall have to revisit Hansard. I am grateful to him for the manner in which he has approached this debate, and I can assure him that it made a pleasant change.

A number of Members have talked about the budget. I know that if the moment comes that we are forced to bring forward a budget Bill, we will no doubt touch on all of the issues in detail, but I hope the House will forgive me if I do not go into any further detail on that this afternoon. What I will say is that we will have to bring forward a Bill if there is not an Executive, which I and the Secretary of State will regret should that be necessary.

On the issue of funding, the Government have, for many years, recognised the unique challenges that Northern Ireland faces. We have provided about £7 billion in additional funding to Northern Ireland since 2014, on top of the Barnett-based block grant and the Northern Ireland budget. Per person, that is around 20% higher than the equivalent UK Government spending in the rest of the UK. I am well aware of the Fiscal Council’s report, which suggests that, on a needs basis, it should be even higher, but I have to say that 20% extra would go a long way in Wycombe—the streets are not all paved with gold there.

[Gavin Robinson]

Will the Minister give way?

[Mr Baker]

I will, if the hon. Gentleman will let me finish my point.

We do need the Executive back, and not because we believe all the problems will go away—far from it—but because we need the problems to be addressed by Northern Ireland Executive Ministers. I am very clear that the road ahead will be long and hard for those Ministers.

[Gavin Robinson]

Does the Minister accept that, within the next two years, the upward trajectory for the budget in England is 6%, but the trajectory in Northern Ireland is 3.6%? Per household, that equates to £2,000 less in Northern Ireland than for his constituents in Wycombe.

[Mr Baker]

I am confident that the hon. Gentleman has done his homework, but I hope he will forgive me for saying that I will not confirm the figures when I do not have them immediately in front of me in the terms that he has put them. As I mentioned in oral questions earlier today, for all of us in this House, and indeed in all the devolved institutions, we do need to engage with the fiscal projections of the Office for Budget Responsibility. There is no doubt in my mind that, for the rest of our political careers and far beyond, there will be a problem with meeting the many demands of age-related spending. All of us will need to rise to that challenge, as it will need, in particular, healthcare reform. The Bengoa report is long since overdue in implementation. I also talked earlier about healthcare.

A total of £600,000 a day is spent maintaining a divided education system. It cannot be right just on a cost basis, never mind all of the social divisions that it leads to. That conversation needs to be had. I have made that position clear. The Government’s position is very clear: we are in favour of integrated education. I know that there will be a spectrum of views on this, but when it comes to funding, we are all clear that the problems that are faced will endure. We are clear that there will need to be a conversation about the Barnett formula—I am aware of the Barnett squeeze—but none of these things will be anything like plausible to solve, in a way that will be acceptable to all sections of the community, until the Executive is restored.

[Sammy Wilson]

I ask the Minister, whose party talks all the time in this House about choice in education, why he wishes to shoehorn education in Northern Ireland into one particular system. Does he not accept that, in Northern Ireland, there are those who choose to have church education, those who choose to have grammar school education, and those who want to have integrated schools? Does he not accept that the same choice that he would have for his constituents should be available to people in Northern Ireland?

[Mr Baker]

I absolutely do. Since the right hon. Gentleman mentions my constituents, I am happy to tell him that we are a grammar system in Wycombe and that the Highcrest Academy has built what it calls an “all ability” school there, which I regard as a comprehensive. Strangely enough, I helped it against the forces of the hard left, which were trying to avoid building an all ability school under the grammar system, and I rather approve of its ability to bring back choice for parents.

We have a co-operative school in my constituency, which I support, and a Catholic school—by the way, Muslim parents, and there are many in Wycombe, choose freely to send their children to the Catholic school. I am all in favour of school choice for my constituents and for the right hon. Gentleman’s constituents, but the question is at what cost. That question is one that he and his colleague Members of the Legislative Assembly need to answer in a re-formed Executive.

However, when I go over to Northern Ireland as a Minister and meet young people who say to me, “I was 16 before I met my first Catholic”, or “I was 18 before I met my first Unionist”, there is so much wrong with that. I find myself amazed that that is even a conversation in the 21st century. Yes to choice, but at what cost?

[Stephen Farry]

I welcome what the Minister says in relation to integrated schools, but I have two points for him. First, I want to reinforce that there is significant demand for integrated schools right across the community in Northern Ireland. Secondly, and most relevant to this debate, does he recognise that moving from a split system to more of a shared, integrated system involves some degree of investment? The problem is that the Department of Education cannot do that at present, in a context of declining budgets where it is trying to protect what it has.

[Mr Baker]

The hon. Gentleman’s point is very well made; he knows that I hear it now and have heard it in the past.

We are clear that finances in Northern Ireland are not sustainable, but we are also clear that it is for an Executive to act on it. In the absence of an Executive, the Government through this Bill will ensure that time is not lost in starting to think about and work on that. We will commission advice from the Northern Ireland civil service on the options for budget sustainability in Northern Ireland, and we are happy to engage with any Member of the House in more detail about what we commission.

I heard what the hon. Member for Foyle (Colum Eastwood) said, and I am particularly interested in engaging with him and the universities. I also recognise the point he makes about places in Derry. He is right that Northern Ireland will never be a laissez-faire paradise, and it will be necessary for policy to embrace the point he makes about rebalancing towards Derry/Londonderry.

We are happy to engage with hon. Members, although I do not wish to pre-empt any particular piece of advice we might commission. We are absolutely clear that it is for locally accountable leadership to take these difficult decisions, but we are clear that those decisions will endure.

Questions were asked about future strategy, but the Government are clear about our strategy for Northern Ireland: devolution, moving forward with the Windsor framework and making the most of our new, constructive relationship with the EU and Ireland to improve that framework in a collaborative way when problems arise, as they inevitably will. Since this point came up earlier, we will then also work towards the review of the trade and co-operation agreement and try to improve our overall position.

While we are doing that—because, as has been said, we can do more than one thing at once—we will do everything we can to cheerlead for Northern Ireland. It is an amazing place, loved by people all over the world and full of talented people with an incredible capacity for innovation and development. They deserve investment, and I for one want to see that they get it.

Finally, I join in the lament about the gap that has opened up between the Government and Unionists. Once again, this has been a painful debate for me to listen to. Sometimes hon. Friends in the DUP have directed their remarks at me, but I would say to them that I do not wish to be hard on them. I must say to my right hon. Friend the Member for East Antrim (Sammy Wilson) that I do not regret having given voice to people in Fermanagh who said, “Get on with it.”. That is what people want in Northern Ireland. There was no chanting—it was just a cry of “Get on with it”, and I am not sorry that I gave voice to that sentiment.

Hon. Members will have noticed that I have tried to be as emollient as possible in recent days—I really have. I have put on record that this is a difficult compromise for me too. I know that it is an even more difficult compromise for them to go back into the Executive with the Windsor framework, but I just say again that we have to choose from available futures.

Everybody here knows that it is not enough just to say what you want; you have to know how you will get it. I am clear, as we go forward with the Bill, that we do not want to be here again with Bills of this nature. We want to celebrate a return of devolved government, and yes, by all means, continue a conversation about the detail of the Windsor framework and what we can do to support the Union and Unionism. But, my goodness, I want us to get to the point, beyond this Bill, where we are celebrating the return of devolved government to solve the real problems that we face, and celebrating a Northern Ireland that has a much better and brighter future.

Question put and agreed to.

Bill accordingly read a Second time; to stand committed to a Committee of the whole House (Order, this day).

Northern Ireland (Interim Arrangements) Bill

Committee of the whole House & 3rd reading
Wednesday 10th May 2023 Commons Chamber

Considered in Committee (Order, this day)

[Dame Rosie Winterton in the Chair]

Clause 1

Departmental Functions

15:51

[The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

I remind Members that in Committee, they should not address the Chair as “Deputy Speaker”. Please use our names. Madam Chair, Chair, and Madam Chairman or Mr Chairman are also acceptable.

[Claire Hanna]

I beg to move amendment 6, page 1, line 12, leave out “when an Executive is formed” and insert—

“when the Executive Committee of the Northern Ireland Assembly has completed a formal meeting at which substantive business has been transacted”.

[The First Deputy Chairman]

With this it will be convenient to discuss the following:

Clause stand part.

Amendment 5, in clause 2, page 2, line 15, at end insert—

“such as providing advice in relation to the Northern Ireland Fiscal Council’s 2023 Report, Updated estimate of the relative need for public spending in Northern Ireland, and the precedent arising from the December 2016 Agreement between the Welsh Government and the United Kingdom Government on the Welsh Government’s fiscal framework”.

Amendment 7, page 2, line 21, leave out “may” and insert “must”.

Amendment 8, page 2, line 21, at end, leave out paragraph (a) and insert—

“(aa) consulting the Equality Commission, the Northern Ireland Human Rights Commission and the Northern Ireland Fiscal Council;

(ab) who else is to be consulted;”.

Amendment 9, page 2, line 24, leave out from “consultation” to end of line 27.

Amendment 2, page 2, line 28, at end insert—

“(4A) The Secretary of State must direct a Northern Ireland department to commission a report to provide an assessment of expenditure costs associated with communal divisions for the purpose of developing options for improving the sustainability of public finances in Northern Ireland.”

This amendment would provide a report to make an updated assessment of the financial costs associated with a divided society and how they could be redirected to improve financial sustainability.

Amendment 3, page 2, line 28, at end insert—

“(4A) The Secretary of State must engage—

(a) with Northern Ireland departments to explore options to transform public services and the economy in order to identify options for improving the sustainability of public finances in Northern Ireland;

(b) with the Treasury on options to provide an invest to save fund to support the transformation and sustainability of public finances in Northern Ireland.”

This amendment would direct the Secretary of State to explore an invest-to-save transformation fund.

Amendment 4, page 2, line 28, at end insert—

“(4A) The Secretary of State must engage with Northern Ireland departments and the Northern Ireland Fiscal Council to produce a needs-based assessment of funding compared to the Barnett formula in order to address the financial sustainability of Northern Ireland, specifically considering changes in relative need arising from differences in population characteristics and socio-economic conditions between Northern Ireland and England, to prevent the funding premium from falling below relative need.”

This amendment would direct the Secretary of State to explore the prospect for a needs-based spending floor and percentage uplift in Barnett consequentials to reflect relative need in Northern Ireland.

Clause 2 stand part.

Amendment 11, in clause 3, page 3, line 20, after “2022” insert—

“during a period when the Assembly is not functioning”.

This amendment would limit the exemption from Assembly scrutiny of directions under this Bill to only periods when the Assembly is not functioning, rather than throughout the period when there is no Executive.

Clauses 3 to 7 stand part.

New clause 2—Assembly power to exercise accountability over section 5A directions—

“(1) In a period where the Assembly is functioning but there is still no Executive, nothing in this Act will prevent a committee so mandated by the Assembly from seeking or taking evidence from relevant Northern Ireland departments or consultees named in any direction by the Secretary of State under section 5A of the Northern Ireland (Executive Formation etc) Act 2022 in respect of options which might be considered or developed on foot of such a direction.

(2) In such a period as described in subsection (1), a committee report adopted after a vote of the Assembly shall duly inform relevant departments and the Secretary of State in respect of relevant stated options for raising more public revenue in Northern Ireland or otherwise improving the sustainability of public finances in Northern Ireland.”

[Claire Hanna]

I rise to speak to amendment 6 in my name and that of my hon. Friend the Member for Foyle (Colum Eastwood), and to make brief comments on a couple of other amendments.

We absolutely echo and share the frustrations of others that we are doing yet another of these Bills in this place. I am struggling to think of a single such Bill—certainly in the three and a half years that we have been here—that was neither a cause nor an effect of Stormont dysfunction, which occupies rather too much time here and limits our potential. We understand the need for interim decision making, but the Bill risks going too far in bypassing Assembly scrutiny. Our amendments aim to address that by guarding against the potential use of graduated responses or the other fairly unedifying stunts that we have seen when the Assembly is being used as a political tool or weapon, and against the cynical use of such Bills to do things that damage public services in the name of reform, as a way to avoid responsibility and scrutiny.

The DUP’s new clause 1(3) instances the possibility of the Assembly functioning in some way alongside these new powers in the absence of an Executive. I want to be absolutely clear: there is, as others have said, no alternative in the here and now to devolution under the Good Friday institutions. People are ready to suspend their disbelief one more time and go back in to make that work, but a graduated response allowing these powers to be deployed to do all the grisly stuff through indirect rule, and turning it into some soap opera where everybody is hopping up and down and opposing the changes, will not be appropriate.

We cannot set up civil servants to instigate and drive controversial issues only to get them out of the way before everyone goes back in. We absolutely need reform in public services, but we need it to be done with scrutiny, not just as a mask for austerity. It needs to be done in a way that builds public trust so that people say, “Yes, you may lose service A, but you will gain service B and C”. Amendment 6 would support and evidence some of those necessary reforms by designing in a role for the Fiscal Council—a body that we have been hugely supportive of—as well as for the Human Rights Commission and the Equality Commissions as consultees. Those bodies are truly creatures of the Good Friday agreement. They are there for a reason and they should have a role in this as well, to give them a locus and so that, as I say, it is not used in a cynical way.

I want to address briefly the contradictions in the messaging we are getting about sustainable finances. There is, rightly, a serious public conversation going on about the sustainability of Stormont’s finances and structures. It is absolutely right to tackle the lack of responsibility-taking in our region, which in its century of existence has never enjoyed good governance. It is appropriate that we do that in a genuinely transformative way.

I also want to address the contradiction in what has been said about sustainable services in the light of the punishing and severe budget we face. What is more sustainable to invest in than children and young people, their health, education, future and resilience? The proposed cuts to the extended schools programme, Bright Start mental health support, pathway funds, education authority schools and youth services—alongside the loss of European social funding for Women’s Centre, which provides childcare and many other forms of family support—are the furthest thing from being sustainable. St Malachy’s youth club in the market area of my constituency does a mind-blowing array of interventions with young people, including homework support, citizenship, fitness, nutrition and lawfulness, making them good citizens and getting them ready for the world and the jobs out there. What is sustainable about its finances being cut by over a third, which will undermine all of its work with those young people? We have put off hard decisions for too long, but it is really important that this Bill is not used as a mask for the same austerity that we have had for over a decade, which does not change outcomes and limits the potential of our young people and of our economy, because they are its future.

I want to address a couple of other amendments. Amendment 1 is a vital intervention by the hon. Member for Walthamstow (Stella Creasy), who has, crucially, been vigilant on the ticking timebomb of the Retained EU Law (Revocation and Reform) Bill, which has the potential not only to deepen and widen the implications of any sea border for goods and for rights, but to dramatically undermine economic sectors and actors on this island. We have absolutely no interest in doing that, so I hope that the reports that there has been change of direction on that very damaging Bill—like others, we wish to hear about those reports in the appropriate place and to have the opportunity to scrutinise them—are correct.

Finally, I support amendment 4, tabled by the hon. Member for North Down (Stephen Farry), which is prudent and sensible in addressing the cost of division. It is time to get on. There is endemic division in our schools and communities. It is time to get past pointing at it and to start the process of reform, transformation and giving people a feasible way to live shared and integrated lives.

[Gavin Robinson]

I rise to speak to amendment 5, tabled by my party leader, my right hon. Friend the Member for Lagan Valley (Sir Jeffrey M. Donaldson), our Chief Whip, my right hon. Friend the Member for East Antrim (Sammy Wilson), and other colleagues. I hope that the Minister of State has considered it positively, and I look forward to hearing that the Secretary of State agrees with it. He will know that it does not any way undermine the substance of his Bill, but that it will be hugely important in assisting him in gathering information as part of his consultation exercise, as we navigate and chart our course through the myriad issues discussed this afternoon relating to dangers to public finances.

I do not think that anyone in the Chamber will disagree that I have probably said enough. The long and short of my aspiration is that the Minister of State, given all the pleasant support he has received from us to date, will look favourably on amendment 5.

[Stephen Farry]

I cannot promise to be quite as brief as my colleague, the hon. Member for Belfast East (Gavin Robinson), but I will try. Essentially, I want to speak to those amendments that stand in my name: amendments 2, 3 and 4, which are all focused on the issue of financial sustainability. We recognise the line that the Government have put into the Bill, and I seek to encourage the Minister to take it forward in a substantive way.

16:00

We are making three suggestions in that regard, the most significant of which relates to a potential financial package for Northern Ireland. Such a package needs to be on an invest-to-save basis, and directly linked to a very select number of areas: health, education, the economy, skills, infrastructure, and climate change mitigation would be our proposals in that regard. I acknowledge that we have to learn lessons from previous interventions from the Government through financial packages, and that the package will have to come with conditions. It will need to be linked to a very clear plan from an Executive about how reform will be taken forward—it would need to be over several years—but we do need to have transformation in Northern Ireland, as many people have acknowledged in this debate. Of course, before we can do transformation, we need to have a stabilisation of the finances, and we cannot do any of that in the context of a burning platform where we are in a spiral of cut after cut and decline after decline.

We have the Bengoa report as the template for health transformation. It will take investment to make it happen, but through investment we will have much better outcomes for the people of Northern Ireland, and it will be on a more cost-effective basis. There is a real incentive for the Government to buy into this; if we do not invest, we will see waiting lists in Northern Ireland getting even longer. I would make the point that our waiting lists are already the longest in the UK, not by a small margin but by a very significant gap.

The same applies to education. We have a massive problem of educational under-attainment in Northern Ireland. That is a major drag on our economy, as well as a blight on some people’s long-term economic and life opportunities, and the education funding gap between Great Britain and Northern Ireland is widening ever further. The Minister’s colleague, the hon. Member for Worcester (Mr Walker)—who was one of his predecessors in the Northern Ireland Office, and currently chairs the Education Committee—has particularly reinforced that point about the growing gap in funding.

We have to grow our economy, which means investment in skills, and also investing in the right skills. The Government themselves are being very clear about the need to tackle Northern Ireland’s disproportionate level of economic inactivity—again, as part of the wider mission across the UK. If we can address those issues, the productivity gap between Northern Ireland and Great Britain will narrow; if we do not, it will widen, with all the attendant consequences that will flow from that. We have to take full advantage of the opportunities we have, including dual market access, the potential trade mission, and the trade conference that the Government are doing. I understand the reluctance and scepticism around this issue, but frankly, I do not see any alternative if we are to break that vicious cycle.

I would use the analogy of a business that is struggling, where the business model is out of date and is not functioning. One of two things will happen: the business will die, or it will restructure. Often, if a business wants to restructure, it has to seek external finance to do so, but again, that finance will come with conditions around how that restructuring is taken forward. We have proposals in with the Government, and we welcome further engagement in that regard. I appreciate that such engagement is probably best done on a structured basis with the Northern Ireland parties; it should be done as quickly as possible, but there does need to be some sort of structure to that.

Amendment 2 relates to the costs of a divided society, which have already been mentioned by my colleague, the hon. Member for Belfast South (Claire Hanna). Our amendment seeks the commissioning of a revised, updated report from a Northern Ireland Department—importantly, as a prelude to action finally being taken in this area. There are some very significant costs arising from duplication and, indeed, distortion in Northern Ireland’s public expenditure profile, which is linked to the legacy of division and violence, and ongoing patterns in how services are provided. It is apparent in four particular ways. One is direct costs. For example, our policing costs and public order costs are higher than the rest of the UK. Secondly, we have some degree of parallel provision, done either implicitly or in some cases explicitly by Government, for different parts of the community. It is not just at Assembly level; it happens with councils, too. Education would be the most clear-cut example in that regard, but it is far from the only one.

Thirdly, there are contextual issues, such as the environment in which public agencies are operating. A clear example is the provision of housing in Northern Ireland, where trying to navigate around patterns of segregation makes it slightly more difficult—perhaps much more difficult—to provide new social housing. There are issues of territoriality of land for redevelopment. We need to get past that if we are to deliver housing more efficiently and effectively. Like elsewhere, there are real pressures on housing for people. Finally, there are opportunity costs from division and lack of political stability for tourism, inward investment and wider economic opportunities.

I reinforce that there have been a series of reports in this area already, notably by Deloitte in 2007 and the Ulster University Economic Policy Centre in 2016. We have had some recent commentary from Ulster University’s “Transforming Education” project, but the work is fundamentally now seven years out of date, and it needs to be re-done if we are to use it as a genuine platform to take forward further reform and transformation.

Finally, I reiterate the point that a number of people have made today about the need for a reassessment of the Barnett formula and how it works for Northern Ireland, with potentially a move to a much more needs-based assessment. The estimate for the shortfall in our finances, if I have my figures are correct, was £362 million for the outgoing financial year. That will rise to £485 million in this financial year. That is a significant element of the differential and the pressures that Northern Ireland Departments are facing.

I will not seek to push any of the amendments to a vote today, but I certainly would like to use this platform to encourage the Government to take seriously those three particular angles around financial sustainability. Work can be done now in preparing for a return to devolution in the near future, but time is not on our side if we are to make the best use of the scarce resources available to us.

[Stella Creasy (Walthamstow) (Lab/Co-op)]

Thank you, Madam Chair. [Interruption.] Apologies, Dame Rosie, it is hard to remember all the different protocols, but I hope I can make up for it in making a short contribution. I put on record a number of concerns. I recognise that amendment 1, which we tabled to address the concerns directly, has not been selected, so let me speak in support of amendments 6 and 8 from my colleagues, as well as new clause 2. I think they all get at the same point, which is why it matters to have scrutiny.

Members in this Chamber who know of my interests in human rights in Northern Ireland might expect me to come at this issue from the question of what is happening with the delivery of abortion services in Northern Ireland. For several years now, that has been done by the Government, rather than the devolved Assembly overseeing it, because of the challenges within Northern Ireland. That powerfully makes the case, for example, for using the Fiscal Council or consulting the Northern Ireland Human Rights Commission, which has been a diligent and doughty defender of the rights of women in Northern Ireland to equal access to abortion.

However, I want to talk about the points that my amendment raised about the use by this Government of the powers in the Retained EU Law (Revocation and Reform) Bill, knowing that right now something very different is happening to that legislation, which nobody is clear about, as the Government are yet again hiding from scrutiny on it. That is not a new concern when it comes to Northern Ireland, because for months now we have been asking the Government to come clean about how they intend to use the powers in the Retained EU Law (Revocation and Reform) Bill in Northern Ireland. So far as I am aware, with today’s announcement there is no change to how that Bill approaches devolution, so let us be clear that it gives the Secretary of State, in proxy of the devolved Administration, the power to decide when the sunset clause that was in the legislation, which I think has now been removed, would kick in, and to replace, restate or revoke legislation. Those are serious powers over how thousands of regulations would be interpreted in Northern Ireland. In the absence of a sitting Assembly, those powers are falling to this Government and a Minister who cannot even be bothered to respect the issue, listen or engage with what is being said. That, again, tells us something about how seriously they take these powers. I digress, but I am sure that whatever I am saying about how he treats the employment rights of people in Northern Ireland is not as important as what he is talking to his Parliamentary Private Secretary about.

As ever with Northern Ireland and devolution, these are complicated issues. They are complicated in two different ways—first in the EU regulations that may or may not be at stake, and also in north-south co-operation, and the restrictions and requirements that are made in order to have convergence. Let me say a little, if I can, to resolve why those complications may happen, and therefore why amendments on the role of the Fiscal Council or the Human Rights Commission—or, indeed, about the ability to take evidence on, frankly, what the Government are doing on behalf of the people of Northern Ireland on this issue—matter.

This issue covers devolved competencies of things such as employment skills, pensions and child support, and environmental laws such as planning and equal opportunities. Northern Ireland Members will no doubt be as shocked as I was to discover that this Government were planning to delete, without any public consultation, people’s right to a basic protection that originally came through EU regulation, which was that if their company went bust, they would be entitled to at least 50% of their pension pot. Rules on pensions are devolved competencies, but the Government announced in the Retained EU Law (Revocation and Reform) Bill Committee that they will revoke at the end of this year the EU regulation holding businesses to account which makes sure that people have at least some basic protection. I do not know the status of that now, but it is a good example of the sort of legislation we would be talking about.

Obviously, Members who have huge experience of devolution would point out to me that when the UK left the European Union, the UK and the EU agreed the protocol—if I can dare to mention that word—which talked about maintaining the necessary conditions for north-south co-operation and protected the 1998 Good Friday agreement. In doing so, Northern Ireland stayed dynamically aligned over many of these areas of legislation, and the Minister may therefore say that this is not an issue to be concerned about and that it does not need this level of scrutiny, because these issues are covered by the protocol. However, Queen’s University Belfast is very clear that about 300 areas of EU regulation are not covered by the protocol, and therefore would be automatically deleted by the Retained EU Law (Revocation and Reform) Bill. They would cover many of these issues, and there is also the issue about direct effect cases, which is where the judgment about protecting people’s pension pot comes from.

The 142 areas of co-operation identified in 2017 as being underpinned by EU policy frameworks and north-south co-operation are the areas up for grabs. Indeed, there is ongoing co-operation in 61 areas. Let me give some examples of the sorts of EU laws that we would be talking about. There is the single-use plastics directive, the regulation on clinical trials of medicinal products for human use, directives about medicines, directives about organisation in agricultural markets—I know that is a deep concern for many of my colleagues representing constituencies in Northern Ireland—and EU Acts on the regulation of energy and electricity markets. This is not small fry when we add it all together.

The point of the amendment I tabled and of the questions we have been asking the Government is how, in the absence of Stormont to scrutinise, these devolved competencies may be used, given the potential impact of changing these regulations in undermining the Windsor framework and therefore changing the alignment on which many of these deals have been done. Those are not my words, but concerns raised by the European Union. The fact is that the Government have consistently tried to avoid even answering the question. They have suggested that the Stormont brake would apply, but it does not, because this is about existing legislation—not new legislation, but existing legislation. People currently have the right to have their pension pot protected, but we still do not know quite what will happen to that pension pot protection at the end of this year for anybody in the United Kingdom. However, certainly in Northern Ireland, where the competency of the devolved authority would be expected to be a part of it, the lack of clarity about how the Government are proceeding on this is deeply troubling, especially when we are entering into another process of having to bring in these interim arrangements, so there is even less scrutiny of how they are using those powers.

I have asked through freedom of information requests for information about the kinds of meetings the Government are having, because they have told us in answer to a written question:

“UK Government Officials have been proactively engaging with their counterparts in the Northern Ireland Civil Service on the progress of the Bill”.

What that means in layman’s terms is that some decisions must have been made about how to use those competencies, and we know that these interim arrangements will exactly cover the period during which those decisions are being made. Now, add into the chaos the announcement that the Retained EU Law (Revocation and Reform) Bill will be changed and we have a recipe for people in Northern Ireland with nobody having an eye on the ball when it comes to their basic rights, because the Government will not be clear or be scrutinised about those conversations and which devolved competences they may use to amend those rights.

16:15

I hope that the Minister can understand why many of us have concerns about the Retained EU Law (Revocation and Reform) Bill—not least about it destabilising the Windsor agreement by removing those levels of alignment—and think that the principle of accountability and scrutiny matters. For many years, he told us that Brexit was about taking back control, but time and again we have seen that the Government do not mean taking back control to democratic institutions; they do not mean taking back control to Parliament. After all, as far as I am aware, nothing in the new retained EU law Bill proposals would change that fundamental transfer of power from the Executive back to Parliament. Therefore, even if the sunset clause has gone, those powers would still be for the UK Government, not for the UK Parliament; the UK Parliament where Northern Ireland Members would be part of conversations and could even have a say on statutory instruments and various regulations—what little say there would be. This is solely about Ministers using their ministerial powers on behalf of the people of Northern Ireland, with no accountability at all, and without even being honest about having the powers and the areas that will be affected. Removing the sunset clause does nothing to the fundamental challenge, especially if we are continuing to bring in legislation, which we absolutely need, to keep the Northern Ireland civil service functioning.

In simple terms, these amendments speak to the simple question: what is the Minister doing on behalf of the Northern Ireland people when it comes to their basic rights? The Bill also covers things such as people’s employment rights and whether people in Northern Ireland will still be entitled to maternity leave, environmental protections and consumer compensation—everyday rights that people across the United Kingdom have particularly relied on. However, in Northern Ireland, the question of alignment and changing alignment takes on an added complexity and added damage. It could undermine the Windsor agreement, and it could mean that people in Northern Ireland have fewer rights than those in the rest of the United Kingdom. Above all, if we continue to be unable to get Stormont back up and running, that could mean Government Ministers in back rooms with civil servants making decisions without any accountability to elected representatives in Northern Ireland or any commitment to any accountability.

I hope that the Minister will at least accept that there is a problem because the powers will be operational now—during the passage of the Bill. I hope that he will commit to coming back to the House and talking to representatives from Northern Ireland—if no one else—about how they are using and interpreting their devolved competences when it comes to retained EU law, as it sounds like the retained EU law Bill will continue on.

The Minister said that his comments about Northern Ireland having a special relationship with the European Union were a slip of the tongue. Well, some of us want all of the United Kingdom to have a special relationship with the European Union so that, now that we have left the European Union, we can all trade and still have those opportunities. But if changes are not to be made in Northern Ireland, why should they be made in the rest of the United Kingdom?

The retained EU law Bill is a power grab—Members in Northern Ireland know how much the Government enjoy that—and, at every single opportunity, those of us who are the true patriots and the true democrats need to wrest it back and challenge the Government on how they will exercise it. The amendments would do exactly that. I hope that the Minister will look on them with kindness.

[The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

I call the shadow Minister.

[Tonia Antoniazzi]

I will keep my comments brief as I do not want to repeat what was said on Second Reading. Labour does not oppose the Bill as it is a necessary step to ensuring that governance in Northern Ireland can continue in the absence of a functioning Executive. The amendments show a clear indication from the Northern Ireland parties that improving Northern Ireland’s financial stability is a priority. Indeed, the Northern Ireland Fiscal Council’s recent work was highlighted a number of times. The Secretary of State mentioned during Northern Ireland questions that he had been in conversation with the Fiscal Council. It would be great to hear his assessment of its report and how he intends to proceed with that information.

Continued engagement with the Northern Ireland parties, as well as with bodies such as the Northern Ireland Fiscal Council, is paramount to best representing the people of Northern Ireland. I hope that such engagement from the Secretary of State and the Minister will continue.

[Mr Steve Baker]

I very much appreciate the contribution everyone has made. Everybody who has spoken in today’s debate is very much seized of the issues and very well informed. They have made their points with great force.

The hon. Member for Gower (Tonia Antoniazzi) raises the Northern Ireland Fiscal Council, so I will turn first to amendments 4 and 5 on relative need and needs-based spending. Provisions in the Bill already allow the UK Government to work with the Northern Ireland civil service on fiscal sustainability for the benefit of people across Northern Ireland, so neither amendment is strictly needed. I do not think it would be right for me to commit the Secretary of State to a particular piece of advice or consultation, but we have of course heard the debate—I listened extremely closely to it—and we are all fully committed to the sustainability of the finances, and to treating people justly and fairly.

[Gavin Robinson]

The Minister knows that the DUP tabled amendment 5 and there is a decision to be taken on whether to press it, or amendment 4 tabled by the hon. Member for North Down (Stephen Farry), to a Division. If the Minister does not wish to commit the Secretary of State to accepting our amendment or to commissioning advice on the basis of the work of the Fiscal Council, it would be very useful if he would at least commit the Secretary of State to engaging with me and colleagues on this issue, so that when advice is commissioned and he is consulting, we can incorporate this as part of the advice he seeks.

[Mr Baker]

Yes, of course. We would be delighted to engage with the hon. Gentleman. We have already said, in relation to commissioning advice and the draft guidance, that we are very happy to engage with Members of all parties, and I am grateful to him for that intervention.

On amendment 6, on the Executive Committee, we believe—with apologies—that it would be unworkable. The decision-making provisions apply only to functions exercised in the absence of Ministers, so once Ministers have been appointed, they can no longer have any practical effect.

[Claire Hanna]

Is the Minister aware—I cannot remember which year it was, because there have been so many crises —of the in-out Ministers stunt? I think it was conducted in mid to late 2015. Ministers resigned on a rotating basis over a period of months, so Ministers were in place but there was not a functioning Executive. It is that kind of carry on we are trying to guard against.

[Mr Baker]

I confess freely that the hon. Lady has me at a disadvantage. I am grateful to her for that point and I shall certainly ask my officials to brief me on that matter.

[Claire Hanna]

Weary experience.

[Mr Baker]

Yes, and I confess that my mind boggles that such a thing should have happened. Equally, I recognise that, standing here right now, I am not aware of the full circumstances. I certainly hear what the hon. Lady says, but even so I hope she will understand that right now I cannot accept the amendment.

Turning to amendments 7, 8 and 9 on specific consultees, we believe that this would be unnecessarily restrictive. Requiring the Secretary of State to direct the Department to consult the specified bodies listed in the amendment is not necessary. The consultee lists for the Northern Ireland Departments are well known and recognised, so we do not wish to pick out the three bodies over any others because it would beg the question, why not include them all? In particular, picking up on the Fiscal Council, the Secretary of State has already confirmed, I think through me, that he is engaged with the Fiscal Council. He is happy to commit to the Committee that he will ensure that it, and all the bodies listed in the amendment, will be consulted on budget sustainability. We therefore ask the hon. Member for Foyle (Colum Eastwood) not to press the amendment to a Division.

On amendment 11, on scrutiny and the scrutiny of Ministers, the approach in the Bill to the power of the Northern Ireland Assembly to call for witnesses and documents is consistent with previous circumstances where the UK Government have taken certain powers to give direction to Northern Ireland Departments. If UK Government Ministers give Northern Ireland Departments a direction, it is right and proper that the line of accountability comes here to Parliament, where UK Government Ministers are accountable. It is not appropriate for the Northern Ireland Assembly to be able to hold UK Government Ministers to account in that way.

On amendment 2, on communal divisions, the hon. Member for North Down (Stephen Farry) makes his points extremely well. He knows—I think I have illustrated it—that I feel his pain on this issue, but we already have, for the purpose of pursuing fiscal sustainability, the ability to take advice and pursue consultations. I certainly look forward to further conversations with him and to taking his advice on where we should look in relation to communal divisions. I will be glad to meet him to consider that issue further. On his amendment 3, on transformation, the Secretary of State would have the powers under the Bill to commission advice and go for consultations to achieve budget sustainability through transformation. I hope that the hon. Member will accept that the amendment is not strictly necessary, but once again, I hear him and he makes his point very well and with great force.

On the Retained EU Law (Revocation and Reform) Bill, I hope the hon. Member for Walthamstow (Stella Creasy) will accept that it is not the responsibility of the Northern Ireland Office to take it through the House, but I listened carefully to what she said about its impact on Northern Ireland. I am conscious that her amendment was not selected, so I hope that she will not mind if I do not go any further.

[Stella Creasy]

The Bill explicitly gives the Minister, in the absence of Stormont, the powers to use the devolved competences. Is he saying that he has not looked into those powers at all, or is he not prepared to talk about how he is exercising them?

[Mr Baker]

As on the face of the Bill, we will be able to seek advice from officials in the Northern Ireland Departments and require consultations, but we will have no powers to implement any of the measures on which we have taken advice. We are clear that devolution is the best way to govern Northern Ireland, as we have said many times.

With that, I am grateful to everyone who has participated in the Committee.

[The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

I believe that the hon. Member for Belfast South (Claire Hanna) wishes to withdraw her amendment.

[Claire Hanna]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.

Clauses 2 to 7 ordered to stand part of the Bill.

The Deputy Speaker resumed the Chair.

Bill reported, without amendment.

Third Reading

16:27

[Mr Steve Baker]

I beg to move, That Bill be now read the Third time.

It is not an especially happy occasion. As the House has fleshed out, we see before us the many difficult decisions that lie ahead. But it is a necessary occasion, as we have all agreed.

I want to place on record my thanks to everyone involved in the Bill’s passage through the House for their support of its expedited passage. I particularly thank the Front Benchers of all parties for their collaborative and constructive engagement on the legislation, recognising the importance of getting it on the statute books to avoid a governance gap from 5 June. I place on record my appreciation to the House authorities, particularly the Clerks who, as ever, have guided us in an expert fashion. I thank the excellent Diggory Bailey in the Office of the Parliamentary Counsel for the expert fashion in which he and colleagues drafted the Bill. I thank my colleagues and officials in the Government Whips office for helping us progress in a smooth fashion, and in particular on this occasion for not putting me under undue time pressure. I am most grateful to them, as always.

I conclude by repeating what I said at Second Reading. People in Northern Ireland rightfully expect to see these decisions taken in Stormont not Westminster, and I agree with them. I think the House does, too.

[Madam Deputy Speaker (Dame Rosie Winterton)]

I call the shadow Secretary of State.

[Madam Deputy Speaker (Dame Rosie Winterton)]

I call the shadow Secretary of State.

[Peter Kyle]

I rise briefly to express my gratitude to the Minister for seeing the Bill so deftly through all its stages today, and also to share his thanks to those who made it happen and those who have spoken today.

The Minister has repeated numerous times today a sentiment that we all share, which is in fact shared by all the Northern Ireland parties and leaders themselves: namely, the desire for Stormont to be up and running again. I would just remind him, when he points to and urges members of Northern Ireland parties, that he is a Minister in the UK Government, and the UK Government have some skin in the game. They have some agency when it comes to the functioning relationships within Northern Ireland—those core relationships between the Irish Government, all the Irish parties and the UK Government.

16:29

[Mr Baker]

For such a matter to come up so late in the debate is just one of those things, but I think that I have a good track record on renewing the relationship with Ireland and with the European Union. The hon. Gentleman is right to say that we have agency, and I am determined, as is the Secretary of State, to work with everyone as expeditiously as possible to make a success of restoring the Executive.

[Peter Kyle]

On numerous occasions today the Minister has urged the Northern Ireland parties to get back in. It is my job to hold his feet to the fire as well, and to point out that he, as a UK Government Minister, has skin in the game on this one. It was, of course, some of the actions of the UK Government that led to some of the challenges that are faced in Northern Ireland, which proves that what happens here in Westminster—the decisions taken in Downing Street and in Whitehall—has a profound impact over there. So rather than always looking to those parties to sort out the problems that have sometimes been created through decisions taken over there, the Minister must be a very active participant in that process.

[Sammy Wilson]

Does the hon. Gentleman accept that while the Minister may say that he has built bridges with the EU and the Irish Government, he has built a bonfire on the bridge with the Unionists?

[Peter Kyle]

My job, at times like this, is not to take the opportunity that the right hon. Gentleman has put before me, but to stand to one side and allow this conversation to unfold between his party and the Government. Clearly there is some healing to do in that relationship—a relationship that has at times been so close that it has led to the two parties serving in the same Government, and to his party supporting the Government—but at present there is dysfunction there, which I accept and acknowledge and view from afar, while trying as hard as I can on behalf of the Labour party to do everything possible to ensure that we can build strong relationships that can heal the divides and get Northern Ireland going again.

Question put and agreed to.

Bill accordingly read the Third time and passed.

Data Protection and Digital Information (No. 2) Bill (First sitting)

Committee stage
Wednesday 10th May 2023 Public Bill Committees

The Committee consisted of the following Members:

Chairs: † Mr Philip Hollobone, Ian Paisley

† Amesbury, Mike (Weaver Vale) (Lab)

† Bristow, Paul (Peterborough) (Con)

† Clarke, Theo (Stafford) (Con)

† Collins, Damian (Folkestone and Hythe) (Con)

† Double, Steve (Lord Commissioner of His Majesty's Treasury)

† Eastwood, Mark (Dewsbury) (Con)

Henry, Darren (Broxtowe) (Con)

† Hunt, Jane (Loughborough) (Con)

† Huq, Dr Rupa (Ealing Central and Acton) (Lab)

Long Bailey, Rebecca (Salford and Eccles) (Lab)

† Monaghan, Carol (Glasgow North West) (SNP)

† Onwurah, Chi (Newcastle upon Tyne Central) (Lab)

† Peacock, Stephanie (Barnsley East) (Lab)

† Richards, Nicola (West Bromwich East) (Con)

Simmonds, David (Ruislip, Northwood and Pinner) (Con)

† Wakeford, Christian (Bury South) (Lab)

† Whittingdale, Sir John (Minister for Data and Digital Infrastructure)

Huw Yardley, Bradley Albrow, Committee Clerks

† attended the Committee

Witnesses

John Edwards, Information Commissioner, Information Commissioner's Office

Paul Arnold, ICO Deputy Chief Executive and Chief Operating Officer, Information Commissioner's Office

Eduardo Ustaran, Global co-head of the Hogan Lovells Privacy and Cybersecurity practice, Hogan Lovells

Vivienne Artz OBE

Bojana Bellamy, President, Centre for Information Policy Leadership

Neil Ross, Associate Director for Policy, TechUK

Chris Combemale, CEO, Data and Marketing Association

Dr Jeni Tennison OBE, Founder and Executive Director, Connected by Data

Anna Thomas, Co-Founder and Director, Institute for the Future of Work

Michael Birtwistle, Associate Director (AI Law and Regulation), Ada Lovelace Institute

Public Bill Committee

Wednesday 10 May 2023

(Morning)

[Mr Philip Hollobone in the Chair]

Data Protection and Digital Information (No. 2) Bill

09:25

[The Chair]

Before we begin, I have a couple of preliminary announcements that Mr Speaker has asked me to draw to your attention. Hansard colleagues would be grateful if Members emailed their speaking notes to [email protected]. Please switch electronic devices to silent. Tea and coffee are not allowed during sittings.

Today we will first consider the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication and a motion to allow us to deliberate in private about our questions before the oral evidence session. In view of the time available, I hope we can take these matters formally—without debate. The programme motion was discussed yesterday by the Programming Sub-Committee for this Bill.

Ordered,

That—

1. the Committee shall (in addition to its first meeting at 9.25 am on Wednesday 10 May) meet—

(a) at 2.00 pm on Wednesday 10 May;

(b) at 9.25 am and 2.00 pm on Tuesday 16 May;

(c) at 11.30 am and 2.00 pm on Thursday 18 May;

(d) at 9.25 am and 2.00 pm on Tuesday 23 May;

(e) at 9.25 am and 2.00 pm on Tuesday 6 June;

(f) at 11.30 am and 2.00 pm on Thursday 8 June;

(g) at 9.25 am and 2.00 pm on Tuesday 13 June;

2. the Committee shall hear oral evidence in accordance with the following Table:

[The Chair]

Copies of written evidence that the Committee receives will be made available in the Committee Room and circulated to Committee members by email. We will now go into private session to discuss lines of questioning.

09:26

The Committee deliberated in private.

Examination of Witnesses

10:50

John Edwards and Paul Arnold gave evidence.

[The Chair]

We are now sitting in public again and the proceedings are being broadcast. Before we hear from the witnesses, do any Members wish to make a declaration of interest in connection with the Bill?

[Jane Hunt (Loughborough) (Con)]

I am not sure whether this is a declaration of interest, so I will mention it just in case. I have had a meeting with Leicestershire Police Federation and I am interested in an amendment that it would like tabled.

[Damian Collins (Folkestone and Hythe) (Con)]

I am not sure whether this is directly relevant to the Bill or adjacent to it, but I am an unpaid member of the board of the Centre for Countering Digital Hate, which does a lot of work looking at hate speech in the online world.

[Mark Eastwood (Dewsbury) (Con)]

Given that one of today’s witnesses is from Prospect, I wish to declare that I am a member of that union.

[Stephanie Peacock (Barnsley East) (Lab)]

I am a proud member of a trade union. I refer the Committee to my entry in the Register of Members’ Financial Interests.

[Chi Onwurah (Newcastle upon Tyne Central) (Lab)]

I am a proud member of two trade unions.

[Dr Rupa Huq (Ealing Central and Acton) (Lab)]

Should we declare our membership of any union?

[The Chair]

My advice is that it is always better to declare.

[Dr Huq]

Okay. I am a member of Unison, formerly the National and Local Government Officers Association.

[Christian Wakeford (Bury South) (Lab)]

I am also a member of a union.

[Mike Amesbury (Weaver Vale) (Lab)]

I am a member of Unison and the GMB.

[The Chair]

We will now hear oral evidence from John Edwards, the Information Commissioner, and Paul Arnold, the deputy chief executive and chief operating officer of the Information Commissioner’s Office. I remind all Members that questions should be limited to matters within the scope of the Bill, and that we must stick to the timings in the programme order, which the Committee has agreed. For this panel, we have until 9.55 am. Will the witnesses please introduce themselves for the record?

John Edwards: Kia ora! My name is John Edwards. I am the Information Commissioner. I took up the job at the beginning of January last year. I was previously the Privacy Commissioner of New Zealand for eight years.

Paul Arnold: I am Paul Arnold, the deputy chief executive and chief operating officer of the ICO. I took up that position in 2016.

[The Chair]

May I gently say to the witnesses that this is a big room, so you will need to project your voices so that we can hear your evidence?

[Stephanie Peacock]

Q Good morning and welcome. The Bill creates a new body corporate to replace the corporation sole. What impact, both in the short and long term, do you think that will have on its ability to carry out its functions?

John Edwards: The corporation sole model is fit for a number of purposes. That was the structure that I had back home in New Zealand. For an organisation such as the Information Commissioner’s Office, it is starting to buckle under the weight. It will benefit, I think, from the support of a formal board structure, with colleagues with different areas of expertise appointed to ensure that we bring an economy-wide perspective to our role, which as we have heard from the declarations of interest spans almost every aspect of human activity.

There will be some short-term, transitional challenges as we make the transition from a corporation sole to a board structure. We will need to employ a chief executive, for example, as well as getting used to those structures and setting up our new accountability frameworks. But I think, in the longer term, the model proposed in the legislation is well proven across other regulators, both domestically and internationally.

[Stephanie Peacock]

Q I would like to ask about the independence of the ICO as it stands. Do you have any experience of being directed by the Secretary of State in a way that has threatened the regulator’s impartial position?

John Edwards: No, I do not.

[Stephanie Peacock]

Q If the Bill is passed in its current form, the Secretary of State—whoever that might be—will have the ability to approve and veto statutory codes of practice produced by the commission, as well as to set out a statement of strategic priorities to which the commission will have to adhere. Do you perceive that having any impact on your organisation’s ability to act independently of political direction?

John Edwards: No, I do not believe it will undermine our independence at all. What I think it will do is to further enhance and promote our accountability, which is very important.

To take your first challenge, about codes of conduct, we worked closely with the Department for Digital, Culture, Media and Sport and subsequently the Department for Science, Innovation and Technology to ensure that we got the appropriate balance between the independence of the commission with the right of the Executive and Parliament to oversee what is essentially delegated lawmaking. I think we have got there. It is not a right to veto out of hand; there is a clear process of transparency, which would require the Secretary of State, in the event that he or she decided not to publish a statutory code that we had recommended, to publish their reasons, and those would be available to the House. I do think there is an appropriate level of parliamentary and Executive oversight of what is, as I say, essentially a lawmaking function on the part of the commission.

[Stephanie Peacock]

Q If the Secretary of State can veto a code of practice that the commission has produced regarding the activities of Government, will that not mean that they are, effectively, marking their own homework?

John Edwards: I do not believe so. The code of practice would be statutory—it is only the most serious statutory guidance that we would issue, not the day-to-day opinions that we have of the way in which the law operates. But, also, it is a reflection of the commissioner’s view of the law, and a statement as to how he or she will interpret and apply the very general principles. A failure of the Secretary of State to table and issue a proposed code would not affect the way in which the commissioner discharges his or her enforcement functions. We would still be able to investigate matters and find them in breach, regardless of whether that finding was consistent with the Secretary of State’s view of the law.

[Stephanie Peacock]

Q I will come on to a slightly different topic now. The ICO will play a huge role in enforcing the measures in the Bill. Is there enough clarity in the Bill to ensure that the commission is able to do that effectively? For example, are you clear on how the commission will enforce the law surrounding terms like “vexatious” and “excessive” with regards to subject access requests?

John Edwards: Yes. We are in the business of statutory interpretation. We are given a law by Parliament. A term like “vexatious” has a considerable provenance and jurisprudence; it is one that I worked with back home in New Zealand. So, yes, I am quite confident that we will be able to apply those.

[Stephanie Peacock]

Q Linked to that, what about terms like “meaningful human involvement” and “significant decision” with regards to automated decision making?

John Edwards: Sorry, what is your question?

[Stephanie Peacock]

Parts of the Bill refer to there being “meaningful human involvement” and “significant decisions” within automated decision making. That might be in an application for a mortgage or in certain parts of employment. Do you feel that you can interpret those words effectively?

John Edwards: Yes, of course. You are quite right to point out that those phrases are capable of numerous different interpretations. It will be incumbent on my office to issue guidance to provide clarity. There are phrases in the legislation that Parliament could perhaps look at providing clearer criteria on to assist us in that process of issuing guidance—here I am particularly thinking of the phrase “high risk” activities. That is a new standard, which will dictate whether some of the measures apply.

[Stephanie Peacock]

That is useful. Thank you.

[Damian Collins]

Q Continuing with that theme, the Bill uses a broader definition of “recognised legitimate interests” for data controllers. How do you think the Bill will change the regime for businesses? What sort of things might they argue they should be able to do under the Bill that they cannot do now?

John Edwards: There is an argument that there is nothing under the Bill that they cannot do now, but it does respond to a perception that there is a lack of clarity and certainty about the scope of legitimate interests, and it is a legitimate activity of lawmakers to respond to such perceptions. The provision will allow doubt to be taken out of the economy in respect of aspects such as, “Is maintaining the security of my system a legitimate interest in using this data?” Uncertainty in law is very inefficient—it causes people to seek legal opinions and expend resources away from their primary activity—so the more uncertainty we can take out of the legislation, the greater the efficiency of the regulation. We have a role in that at the Information Commissioner’s Office and you as lawmakers have just as important a role.

[Damian Collins]

Q How would you define that clarity that the Bill is seeking? If a data controller thinks, “Well, if I have legitimate business interests, I can make an excuse for doing whatever I like,” that surely is not what the Bill intends. How would you define the clarity that you say the Bill seeks?

John Edwards: You are right that it is the controller’s assessment and that they are entitled to make that assessment, but they need to be able to justify and be accountable for it. If we investigate a matter where a legitimate interest is asserted, we would be able to test that.

[Damian Collins]

Q How would you test it?

John Edwards: Well, through the normal process of investigation, in the same way as we do now. We would ask whether this was in the reasonable contemplation of the individual who has contributed their data as a necessary adjunct to the primary business activity that is being undertaken.

[Damian Collins]

Q Does this change things very much? It sounds like you are saying that business may assert it has a legitimate interest, but if you think it does not, you can investigate and take action as the law stands currently, effectively.

John Edwards: Yes, that is right. But the clarity will be where specific categories of legitimate interest are specified in the legislation. Again, that will just take out the doubt, if there is doubt as to whether a particular activity falls within scope.

[Damian Collins]

Q Is more clarity needed about the use of inferred data? Major social media platforms rely on inferred data to drive their recommendation tools and systems. There are then questions about whether inferred data draws on protected data characteristics without user permission. A platform might say that that is part of its recognised legitimate business interests, but users might say that it is an infringement of their data rights. Is that clear enough?

John Edwards: I am afraid that I have to revert to the standard, which is, “It depends.” These are questions that need to be determined on a case-by-case basis after examination ex post. It is a very general question that you ask. It depends on what the inferred data is being used for and what it is. For example, my office has taken regulatory action against a company that inferred health status based on purchasing practices. We found that that was unlawful and a breach of the General Data Protection Regulation, and we issued a fine for the practice. Again, the law is capable of regulating inferred data, and there is no kind of carte blanche for controllers to make assumptions about people based on data points, whether collected from or supplied by the individual or not.

[Damian Collins]

Q Your predecessor raised the issue of the use of inferred data among users’ protected data characteristics—political opinions, religious beliefs, sexual orientation—and said that, without the user’s informed consent, that could not be legal. Do you agree with that?

John Edwards: I am not aware of the statement she made or the context in which she made it, so it is difficult for me to say whether she agreed it. Certainly, informed consent is not the only lawful basis for a data processing activity and it may be that data about protected activities can be inferred and used in some circumstances. I would be happy to come back to you having checked that quote and to give you my views as to whether I agree with it in the context in which it was made.

[Damian Collins]

Q These are quite important matters because inferred data is such an important part of data processing for major platforms, be it a company assessing someone’s attitude to risk and how that affects the way they might use a gambling product, versus taking someone’s personal, private information, inferring things from it and making them open to suggestions they may not want to receive without their informed consent. That is a grey area, and I wonder whether you think the Bill provides greater clarity, or you think there needs to be more clarity still.

John Edwards: I think there is sufficient clarity. I am not sure whether the Bill speaks to the point you have just made, but for me the overarching obligation to use data fairly enables us to make assessments about the legitimacy of the kinds of practices you are describing.

[The Chair]

It is a really tight timetable this morning and we have nine minutes left. The Minister wants to ask some questions and there are three Members from the Opposition. I will call the Minister now. Perhaps you would be kind enough, Minister, to leave time for one question each from our three Members of the Opposition.

[The Minister for Data and Digital Infrastructure (Sir John Whittingdale)]

Q Thank you, Mr Hollobone. Good morning, Mr Edwards. Both the structure and powers of your office are going to change as a result of the Bill. Do you believe that the existing structure and the absence of the powers you will gain under the Bill have in any way impeded the carrying out of your functions?

John Edwards: The obligation to investigate every complaint does consume quite a lot of our resources. Can I ask my colleague to make a contribution on this point?

Paul Arnold: As the commissioner says, that duty to investigate all complaints can challenge us in terms of where we need to dedicate the majority of our resources.

To the previous question and answer, our role in trying to provide or maximise regulatory certainty means being able to invest as much resource as we can in that upstream advice, particularly in those novel, complex, finely balanced, context-specific areas. We are adding far more value if we can add that support upstream.

The additional statutory objectives that are being added through the Bill overall will be a real asset to our accountability. Any regulator that welcomes independence also needs to welcome the accountability. It is the means through which we describe how we think, how we act and the outcomes that we achieve. Those extra statutory objectives will be a real aid to us and also an aid to Parliament and our stakeholders. It really does crystallise and clarify why we are here and how we will prioritise our efforts and resources.

[Sir John Whittingdale]

Q In the interests of time, I will ask you one other question. Mr Edwards, you had experience as the New Zealand Privacy Commissioner for some time. New Zealand is one of the countries recognised as having data adequacy by the European Union. Can you give us a view, based on your experience of dealing with the European Union, of whether there is any concern about the Bill that might put at risk the UK’s data adequacy recognition from the EU?

John Edwards: I do not believe there is anything in the Bill that would put at risk the adequacy determination with the European Union. The test the Commission applies is whether the law is essentially equivalent. New Zealand lacks many of the features of the GDPR, as do Israel and Canada, each of which has maintained adequacy status. The importance of an independent regulator is preserved in this legislation. All the essential features of the UK GDPR or the rights that citizens of the European Union enjoy are present in the Bill, so I do not believe that there is a realistic prospect of the Commission reviewing negatively the adequacy determination.

[The Chair]

It is a brutal cut-off, I am afraid, at 9.55 am. I have no discretion in this matter. It is a quick-fire round now, gentlemen. We need quick questions and quick answers, with one each from Carol Monaghan, Chi Onwurah and Mike Amesbury.

[Carol Monaghan (Glasgow North West) (SNP)]

Q Clause 40 sets out the criteria by which a data controller can refuse data access requests. Do you think this is appropriate? Are you concerned that it may lead to a situation in which only those who can afford to pay a potential fee will be able to access their data?

John Edwards: Yes and no. Yes, I do believe it is an adequate provision, and no, I do not believe there will be an economic barrier to people accessing their information rights.

[Chi Onwurah]

Q The Bill’s intent is to reduce burdens on organisations while maintaining high data protection standards. Do you agree that high data protection standards are promoted by well-informed and empowered citizens? What steps do you think the Bill takes to ensure greater information empowerment for citizens?

John Edwards: Yes, I do believe that an empowered citizenry is best placed to enjoy these rights. However, I also believe that the complexity of the modern digital environment creates such an information asymmetry that it is important for strong advocates such as the Information Commissioner’s Office to act as a proxy on behalf of citizenry. I do not believe that we should devolve responsibility to citizens purely to ensure that high standards are set and adhered to in digital industries.

[Mike Amesbury]

Q Drawing on your expertise, is there anything missing from the Bill that you would have liked to see?

John Edwards: I do not believe so. We have been involved right from the outset. We made a submission on the initial White Paper. We have worked closely with officials. We have said that we want to see the Bill get to a position where I, as Information Commissioner, am able to stand up and say, “I support this legislation.” We have done that, which has meant we have achieved quite significant changes for the benefit of the people of the United Kingdom. It does not mean that we have just accepted what the Government have handed out. We have worked closely together. We have acted as advocates, and I believe that the product before you shows the benefits of that.

[The Chair]

We have a late entry—the last question will be from Rupa Huq.

[Dr Huq]

Q When I was on the Criminal Finances Bill Committee, lots was promised, but the National Crime Agency then claimed that it was not financed enough to pursue all the unexplained wealth orders that were promised. Do you think that a beefed-up Information Commission will be sufficiently well resourced to do all the things it is meant to do?

John Edwards: In short, yes. We are having discussions about the funding model with DSIT. We are funded by levies. There are two questions: one is about how those levies are set and where the burden of funding our office lies in the economy, and the second is about the overall quantum. We can always do more with more. If you look at the White Paper on artificial intelligence and the Vallance report, you will see that there is a role for our office to patrol the new boundaries of AI. In order to do that, we will have to be funded appropriately, but I have a good relationship with our sponsor Department and am confident that we will be able to discharge all the responsibilities in the Bill.

[The Chair]

Gentlemen, thank you very much indeed for your evidence. You can now breathe, relax and enjoy the rest of your day.

Examination of Witnesses

Eduardo Ustaran, Vivienne Artz and Bojana Bellamy gave evidence.

09:53

[The Chair]

Q We will now hear oral evidence from Eduardo Ustaran, global co-head of the privacy and cyber-security practice at Hogan Lovells, who is appearing via Zoom; Vivienne Artz OBE, who is in the room; and Bojana Bellamy, president of the Centre for Information Policy Leadership, who is also appearing via Zoom. For this session we have until 10.25 am. Will the witnesses introduce themselves for the record, starting with Vivienne Artz?

Vivienne Artz: Good morning. My name is Vivienne Artz. I am the chair of the International Regulatory Strategy Group data committee, I have more than 25 years’ experience in financial services, including acting as a chief privacy officer, and I now do advisory work across a range of sectors, including in the context of financial crime.

[The Chair]

Will Eduardo Ustaran please introduce himself? Can you hear us, Mr Ustaran? No. Can you hear us, Bojana Bellamy? No. Okay, we will start with our witness who has been kind enough to join us in the room.

[Stephanie Peacock]

Q Welcome. Vivienne, would you be in favour of implementing a smart data regime in your industry? If so, why?

Vivienne Artz: Yes, we are interested in implementing a smart data regime because it will allow broader access to data for innovation, particularly in the context of open banking and open finance. It would require access to information, which can often be limited at the moment. There is a lot of concern from businesses around whether or not they can actually access data. Some clarification on what that means, in respect of information that is not necessarily sensitive and can be used for the public good, would be most welcome. Currently, the provisions in the legislation are pretty broad, so it is difficult to see what it will look like, but in theory we are absolutely in favour.

[Stephanie Peacock]

Q Could you give more detail on who you think would benefit or lose out, and in what ways?

Vivienne Artz: Consumers would absolutely benefit, and that is where our priority needs to be—with individuals. It is an opportunity for them to leverage the opportunities that the data can provide. It will enable innovators to produce more products and services that will help individuals to better understand their financial and personal circumstances, particularly in the context of utility bills and so on. There are a number of positive use cases. There is obviously always the possibility that data can be misused, but I am a great advocate of saying that we need to find the positive use cases and allow business to support society and our consumers to the fullest extent. That is what we need to support.

[Stephanie Peacock]

Q Brilliant. What are your thoughts on giving the Secretary of State the power to amendment data protection legislation further? Do you think it is necessary to future-proof the Bill?

Vivienne Artz: It is necessary to future-proof the Bill. We are seeing such an incredible speed of innovation and change, particularly with regard to generative artificial intelligence. We need to make sure that the legislation remains technology-neutral and can keep up to date with the changes that are currently taking place.

[Stephanie Peacock]

I have more questions if our other witnesses are with us.

[The Chair]

We still have not heard definitively whether our other guests can hear us or speak to us, so we are waiting for confirmation from the tech people. In the meantime, I invite the Minister to question Vivienne Artz.

[Sir John Whittingdale]

Q You have a lot of experience in respect of international data transfers. The European Union has a number of data adequacy agreements around the world, but the process to establish them has been slow. How do you think the Bill will make it easier for us to improve international data agreements? What prospects are there for the UK to establish such agreements, and with which countries?

Vivienne Artz: The Bill provides for the opportunity for the Government to look at a range of issues and to move away from an equivalence approach to one in which we can consider more factors and features. The reality is that if you compare two pieces of legislation, you will always find differences because they come from different cultural backgrounds and different legal regimes. There will always be differences. The approach the UK is taking in the Bill is helpful because it looks at outcomes and broader issues such as the rule of law in different jurisdictions.

What is said on paper is not necessarily what always happens in practice; we need to look at it far more holistically. The legislation gives the Government the opportunity to take that broader and more common-sense view with regard to adequacy and not just do a word-by-word comparison of legislative provisions without actually looking at how the legislation is implemented in that jurisdiction and what other rights can support the outcomes. We can recognise that there is a different legal process and application but ask whether it still achieves the same end. That is what is really important. There is an opportunity not only to move more quickly in this space but to consider jurisdictions that might not be immediately obvious but none the less still offer appropriate safeguards for data.

[Sir John Whittingdale]

Q Obviously it is already possible for us to undertake international data transfers to countries with which we do not have an adequacy agreement. Can you set out the advantages of having a general adequacy agreement in terms of data transfer and the benefits to the UK economy?

Vivienne Artz: The current process is incredibly cumbersome for businesses and, if I am honest, it provides zero transparency for individuals as well. It tends to be mostly a paperwork exercise—forgive if that sounds provocative, but putting in place the model clauses is very often an expensive paperwork exercise. At the moment, it is difficult, time-consuming and costly, as the case may be.

The thing with adequacy is that it is achieved at a Government-to-Government level. It is across all sectors and provides certainty for organisations to move forward to share information, sell their goods and services elsewhere and receive those goods and services, and for consumers to access those opportunities as well. Adequacy is certainly the ideal. Whether it is achievable in all jurisdictions I do not know, but I think it is achievable for many jurisdictions to provide confidence for both consumers and businesses on how they can operate.

[Sir John Whittingdale]

Thank you.

[The Chair]

We can see Mr Ustaran and Ms Bellamy and they can hear us, but we cannot hear them, so we will carry on with questioning Vivienne Artz.

[Carol Monaghan]

Q A number of organisations have expressed concerns about moving to a situation in which we can refuse subject access requests or indeed charge a fee. Do you believe the thresholds in the Bill are appropriate and proportionate?

Vivienne Artz: I do think the thresholds are appropriate and proportionate. In practice, most organisations do not actually choose to charge, because actually it costs more to process the cheque than it is worth in terms of the revenue. Certainly, some sectors have been subject to very vexatious approaches through claims-management companies and others, where it is a bombarding exercise and it is unclear whether it is in the best interests of the consumers, or whether it is at their understanding and behest, to make a genuine subject access request.

I am a great supporter of subject access requests—they are a way for individuals to exercise their rights to understand what data is being processed—but as a result of quirks of how we operate often in the UK, they are being used as a pre-litigation investigative tool on the cheap, which is unfortunate and has meant that we have had to put in place additional safeguards to ensure they are used for the purpose for which they were provided, which is so that individuals can have transparency and clarity around what data is being processed and by whom.

[Carol Monaghan]

Q Do you think the threshold for something to be considered vexatious or excessive is well understood?

Vivienne Artz: We have heard from the Information Commissioner that they are fairly clear on what that terminology means and it will reflect the existing body of law in practice. I will be perfectly honest: it is not immediately clear to me, but there is certainly a boundary within which that could be determined, and that is something we would rely on the Information Commissioner to provide further guidance on. It is probably also likely to be contextual.

[Carol Monaghan]

Q How frequently do we expect such requests to be refused off the back of this legislation?

Vivienne Artz: I think it depends on the sector. I come from the financial services sector, so the types of subject access requests we get tend to be specific to us. I think organisations are going to be reluctant to refuse a subject access request because, at the end of the day, an individual can always escalate to the Information Commissioner if they feel they have been unfairly treated. I think organisations understand their responsibility to act in the best interests of the individual at all times.

[The Chair]

Q Ms Bellamy and Mr Ustaran, we can now hear both of you. Would you be kind enough to introduce yourselves?

Bojana Bellamy: Thank you for inviting me to this hearing. My name is Bojana Bellamy. I lead the Centre for Information Policy Leadership. We are a global data privacy and data policy think-and-do-tank operating out of London, Brussels and Washington, and I have been in the world of data privacy for almost 30 years.

Eduardo Ustaran: Good morning. My name is Eduardo Ustaran. I am a partner at Hogan Lovells, based in London, and I co-lead our global privacy and cyber-security practice, a team of over 100 lawyers who specialise in data protection law all over the world.

[The Chair]

Thank you. Chi Onwurah and Damian Collins are lined up to ask questions, but I want first to ask the shadow Minister whether she has any further questions, followed by the Minister. Because we have one witness in the room and two online, please will whoever is asking the question indicate whom you are asking it of?

[Stephanie Peacock]

Q Good morning to our guests joining us via Zoom. Ms Bellamy, in your opinion has it been difficult for businesses to adapt to the EU GDPR? If so, do you think the changes in the Bill will make it easier or harder for businesses to comply with data protection legislation?

Bojana Bellamy: Yes, certainly it has been hard to get businesses to comply with GDPR, in particular small and medium-sized businesses. I think the changes proposed in the Bill will make it easier, because it is more about outcomes-based regulation. It is more about being effective on the ground, as opposed to being prescriptive. GDPR is quite prescriptive and detailed. It tells you how to do things. In this new world of digital, that is not very helpful, because technology always goes in front of and faster than the rules.

In effect, what we see proposed in the Bill is more flexibility and more onus on organisations in both the public and private sector to deliver accountability and effective protection for people. It does not tell them and prescribe how exactly to do that, yet they are still accountable for the outcomes. From that perspective, it is a step forward. It is a better regime, in my opinion.

[Stephanie Peacock]

Q Mr Ustaran, what do you perceive the value of EU adequacy to be? What would be the consequences for your businesses and other businesses and the UK market of losing such an agreement?

Eduardo Ustaran: From the point of view of adequacy, it is fundamental to acknowledge that data flows between the UK and the EU and the EU and the UK are essential for global commerce and for our digital existence. Adequacy is an extremely valuable element of the way in which the current data protection regime works across both the EU and the UK.

It is really important to note at the outset that the changes being proposed to the UK framework are extremely unlikely to affect that adequacy determination by the EU, in the same way that if the EU were to make the same changes to the EU GDPR, the UK would be very unlikely to change the adequacy determination of the EU. It is important to appreciate that these changes do not affect the essence of UK data protection law, and therefore the adequacy that is based on that essence would not be affected.

[Stephanie Peacock]

Q You have answered my next question—thank you—but I will pose it to the other witnesses, who may have something to add. In the previous session, the Information Commissioner said that he did not think the Bill was a threat to adequacy. That is comforting, but it is not confirmation, because the only people who have the power to decide whether adequacy stands are the European Commission. Do you think any of the measures in the Bill pose a risk to the adequacy agreement?

Bojana Bellamy: I certainly agree that adequacy is a political decision. In many ways—you have seen this with the Northern Ireland protocol—some of these decisions are made for different purposes. I do not believe there are elements of the Bill that would reduce adequacy; if anything, the Bill is very well balanced. Let me give you some examples of where I think the Bill goes beyond GDPR: certainly, on expectations of accountability on the senior responsible individual, which actually delivers better oversight and leadership over privacy; on the right to complain to an organisation and on organisations to respond to these complaints; and on the strong and effective Information Commissioner, who actually has more power. The regulator is smarter; that, again, is better than GDPR. There are also the safeguards that exist for scientific research and similar purposes, as well as some other detailed ones.

Yes, you will see, and you have seen in public projects as well, that there are people who are worried about the erosion of rights, but I do not believe that exception to subject access requests and other rights we talked about are actually a real erosion. I think it just clarifies what has been the law. Some of the requirements to simplify privacy impact assessment and records of processing will, in fact, deliver better accountability in practice. They are still there; they are just not as prescriptive. The Information Commissioner has strong powers; it is a robust regulator, and I do not believe its independence will be dented by this Bill. I say to those who think that we are reducing the level of protection that, actually, the balance of all the rules is going to be essential equivalency to the EU. That is really what is important.

May I say one more thing quickly? We have seen the EU make adequacy decisions regarding countries such as Japan and Korea, and even privacy shield. Even in these cases, you have not had a situation where the requirements were essentially equivalent. These laws are still different from GDPR—they do not have the right of portability or the concept of automated decision making—but they are still found to be adequate. That is why I really do not believe that this is a threat. One thing we have to keep absolutely clear and on par with the EU is Government access to data for national security and intelligence purposes. That is something the EU will be very interested in to ensure that that is not where the bar goes down, but there is no reason to believe so and there is nothing in the Bill to tell us so.

Vivienne Artz: I concur; I do not think the Bill poses any threat to adequacy with the EU. With regard to the national security issue that Bojana raises, I would also point out that the UN rapporteur noted that the UK has better protections for Government access to data than many EU member states, where it is often a very political approach as opposed to a practical approach and really looking at what the outcomes are. There is nothing in this Bill that would jeopardise adequacy with the EU.

[The Chair]

We have 12 minutes left and two Members are indicating that they wish to ask questions after you, Minister.

[Sir John Whittingdale]

Q I will be very quick, Mr Hollobone. Ms Bellamy, you have suggested that in some ways the regime that the Bill puts in place is superior to that of the existing GDPR and that it certainly does not risk our adequacy recognition in any way. Given the development of technology and the increasing use of things like AI, to what extent do you think the EU might follow the same sort of path that the Bill sets out to try to create a more flexible and a state-of-the-art regime?

Eduardo Ustaran: That is a very important question to address because perhaps one of the ways in which we should be looking at this legislative reform is a way of seeing how the existing GDPR framework that exists both in the EU and the UK could, in fact, be made more effective, relevant and modern to deal with the issues we are facing right now. You refer to artificial intelligence as one of those issues.

GDPR in the EU and the UK, is about five years old. It is not a very old piece of legislation, but a number of technological developments have happened in the past five years. More importantly, we have learned how GDPR operates in practice. This exercise in the UK is in fact very useful, not just for the UK but for the EU and the world at large, because it is looking at how to reform elements of existing law that is already in operation in order to make it more effective. That does not mean that the law needs to be more onerous or more strict, but it can be more effective at the same time as being more pragmatic. This is an important optic in terms of how we look at legislative reform, and not only from the UK’s point of view. The UK can make an effort to try to make the changes more visible outside the United Kingdom, and possibly influence the way in which EU GDPR evolves in the years to come.

Bojana Bellamy: I agree that we need a more flexible legal regime to enable the responsible use of AI and machine learning technologies. To be very frank with you, I was hoping the Bill would go a little further. I was hoping that there would be, for example, a recognition of the use of data in order to train algorithms to ensure that they are not discriminatory, not biased and function properly. I would have hoped that would be considered as an example of legitimate interests. That is certainly a way in which the Government can go further, because there are possibilities for the Secretary of State to augment those provisions.

We have seen that in the European AI Act, where they are now allowing greater use of data for algorithmic AI training, precisely in order to ensure that algorithms work properly. We have Dubai’s data protection law and some others are starting to do that. I hope that we have good foundations to ensure further progression of the rules on AI. The rules on automated decision making are certainly better in this Bill than they are in GDPR. They are more realistic; they understand the fact that we going to be faced with AI and machine learning taking more and more decisions, of course with the possibility of human intervention.

Again, to those who criticise the rules, I would say it is more important to have these exposed rights of individuals. We should emphasise, in the way we have done in the Bill, the right to information that there is AI involved, the right to make a representation, the right to contest a decision, and the right to demand human review or human intervention. To me, that is really what empowers individuals and gives them trust that the decisions will be made in a better way. There is no point in prohibiting AI in the way GDPR sort of does. In GDPR, we are going to have something of a clash between the fact that the world is moving toward greater use of AI, and that in article 22 on automated decision making, there is a prohibition that makes it subject to consent or contract. That is really unrealistic. Again, we have chosen a better way.

As a third small detail, I find the rules on research purposes to be smarter. They are rather complicated to read, to be frank, but I look forward to the consolidated, clean version. The fact that technological development research is included in commercial research will enable the organisations that are developing AI to create the rules in a responsible way that creates the right outcomes for people, and does not create harms or risks. To me, that is what matters. That is more important, and that is what is going to be delivered here. We have the exemptions from notices for research and so on, so I feel we will have better conditions for the development of AI in a responsible and trusted way. However, we must not take our eyes off it. We really need to link GDPR with our AI strategy, and ensure that we incentivise organisations to be accountable and responsible when they are developing and deploying AI. That will be a part of the ICO’s role as well.

[The Chair]

Five minutes left. This will be the quick-fire round. I have two Members indicating that they wish to ask questions—Chi Onwurah.

[Chi Onwurah]

Q Thank you, Mr Hollobone. We have heard that the intent in the Bill is in part to reduce the burden on organisations from data protection. We heard you set out what some of those burdens might be. The organisations affected by this Bill, and the organisations with which you work in different ways, operate in different jurisdictions. I think you, Ms Artz, set out quite well the challenges of having—or trying to have—the same regime in different jurisdictions. If forced to make a choice between following the European Union regime and following a divergent UK regime, what choice would the organisations with which you work make?

[The Chair]

Please choose one witness.

[Chi Onwurah]

Mr Ustaran, please.

Eduardo Ustaran: This is a question that many organisations that operate globally face right now. You must understand that data protection law operates all over the world and data flows all over the world, so consistency is really important in order to achieve compliance in an effective way. Therefore, a question—a very valid question—is, “Do I comply with the EU GDPR across the board, including in the UK, or should I make a difference?”

The reality is that when you look at the way in which the UK data protection framework is being amended, it provides a baseline for compliance with both the UK and EU regimes, in the sense that much of what is being introduced could potentially be interpreted as already being the case in the EU, if you apply perhaps a more progressive interpretation of EU law. Therefore, I think we should look just a little bit further than just saying, “Well, if I do comply with EU law, will I be all right in the UK?”

Maybe the way to look at it—something I see some organisations exploring—is, “If I were to take the UK interpretation of the GDPR on a wholesale basis, would that allow me to operate across the world, and certainly in the EU, in a more effective and efficient but still compliant way?” This is something that companies will be exploring, and it is not as easy as simply saying, “Well, I will just do EU law across the board.”

[Chi Onwurah]

Could I—

[The Chair]

Sorry. It must be one quick question and one quick answer. We must finish at 10.25 am. Damian Collins.

[Damian Collins]

Q Ms Artz, one of the complaints about the current GDPR regime has been, for example, that oligarchs use it aggressively to target investigative journalists conducting legitimate investigations into their business activities, to bombard them with data access requests. Do you think that the provisions in the Bill around vexatious requests will help in that situation? Do you think that it will make any difference?

Vivienne Artz: I think it will help a little bit in terms of the threshold of “vexatious”. I think the other piece that will help is the broadening of the provisions around legitimate interests, because now there is an explicit legitimate interest for fraud detection and prevention. At the moment, it is articulated mostly as to prevent a crime. I would suggest that it could be broadened in the context of financial crime, which has anti-money laundering, sanctions screening and related activities, so that firms can actually process data in that way.

Those are two different things: the one is processing data around sanctioned individuals and such like in the context of suspicious activities, and the other is the right of a subject access to remove their data. Even if they make that subject access request, the ability now to balance it against broader obligations where there is a legitimate interest is incredibly helpful.

[The Chair]

I thank all three witnesses for their time this morning and their extremely informative answers to the questions. Our apologies from Parliament for the tech issues that our two Zoom contestants had to endure. Thank you very much indeed. We will now move on to our third panel.

Examination of Witnesses

Neil Ross and Chris Combemale gave evidence.

10:24

[The Chair]

Q Welcome. We will now hear oral evidence from Neil Ross, Associate Director for Policy at techUK, and Chris Combemale—I hope I pronounced that correctly—the Chief Executive Officer of the Data and Marketing Association. Gentlemen, this session, as you have seen from the previous two, has to end no later than 10.50 am. I will be grateful if you could be kind enough, please, to introduce yourselves to the Committee for the record.

Neil Ross: Thank you for having us before the Committee. My name is Neil Ross. I am the Associate Director for Policy at techUK, the trade association that represents the technology sector in the UK. We have 950 companies in our membership.

Chris Combemale: I am Chris Combemale, the CEO of the Data and Marketing Association. I have 40 years’ experience as a practitioner in marketing and advertising. I started on the agency side, including well-known brands, leading marketing technology business and first-generation cloud marketing technology.

[The Chair]

I apologise for getting your surname pronunciation wrong, Mr Combemale.

Chris Combemale: That’s okay, it happens all the time. It is actually of French heritage, rather than Italian.

[Stephanie Peacock]

Q Welcome to the witnesses. TechUK’s response to the withdrawn Bill last autumn stated that it

“could go further in seeking the full benefits of data driven innovation”.

Does this amended Bill go further?

Neil Ross: Yes, it does. If we go back to the statement of the Information Commissioner earlier, the most important part of the legislation is to provide increased clarity on how we can use data. I think there were about 3,000 responses to the consultation, and the vast majority—particularly around the scientific research and the legitimate interest provisions—focused on providing that extra level of clarity. What the Government have done is quite clever, in that they have lifted examples from the recitals—recital 157, as well as those related to legitimate interests—to give additional clarity on the face of the Bill, so that we can take a much more innovative approach to data management and use in the UK, while still maintaining that within the broad umbrella of what means we qualify for EU adequacy.

[Stephanie Peacock]

Q How have your members found adapting to GDPR? Will the Bill make it easier or harder for those that you represent to comply?

Neil Ross: Most tech companies have adapted to GDPR. It is now a common global standard. The Bill makes the compliance burden a little easier to use, allows us to be a little more flexible in interpretation of it and will give companies much more certainty when taking decisions about data use.

One really good example is fraud. Online fraud is a massive problem in the UK and the Government have a strategy to deal with it, so having that legitimate interest that focuses on crime prevention—also those further processing rights around compliance with the law—means that we can be much more innovative and adaptive about how we share and process data to protect against and prevent fraud. That will be absolutely vital in addressing the shared objective that we all have to reduce online fraud.

[Stephanie Peacock]

Q On the changes to requirements to report suspicious activity related to unsolicited direct marketing, do the telecoms companies among your members have the technical capability to identify instances of mass unsolicited direct marketing in order to report as required?

Neil Ross: No. That is one area where we think further work is needed in the Bill. I think you are referring to clause 85. When we responded to the consultation, we said that the Government should try to create equivalence between the private communications requirements and the GDPR to give that extra level of flex. By not doing that and by not setting out specific cases of where telecoms companies have to identify unsolicited calls, the Government are being really unfair in what they are asking them to do. We have had concerns raised by a range of companies, both large and small, that they might not have the technical capability and that they will have to set up new systems to do it. Overall, we think that the Bill makes a bit of a misstep here and that we need to clarify exactly how it will work. TechUK and some of my colleagues will be suggesting to the Committee some legal amendments for how to do that.

[Stephanie Peacock]

Q On that point, do the telecoms companies feel that they have been consulted properly in the making of the legislation?

Neil Ross: No, not on that clause, but yes in relation to the rest of the legislation.

[Stephanie Peacock]

Q I was asking about that. Chris, will the changes to the cookies set out in the Bill benefit, first, the consumer experience and, secondly, your members or businesses?

Chris Combemale: Yes. First, on the consumer experience, I think that we all recognise that the pop-up consent banners for cookies are generally ticked as a matter of course by consumers who really want to go about their business and get to the website that they want to do business on. In a way, it is not genuine consent, because people are not really thinking deeply about it.

In terms of business, a number of the cookies, which are really identifiers that help you understand what people are doing on your website, are used just on a first-party basis by websites, such as e-commerce websites and business-to-business websites, to understand the basic operational aspects and statistical measurement of how many people are going to which pages. Those are websites that do not take any advertising and do not share any data with third parties, so the exemptions in the Bill generally would make those types of companies no longer need cookie banners while providing no risk to the customers, because the company uses the cookies purely to understand the behaviours of its own website traffic and its own customers. In that sense, we strongly support the provisions and the exemptions in the Bill.

[Stephanie Peacock]

Q Is the technology available to centralise cookies by browser?

Chris Combemale: I think it can be eventually, but we oppose those provisions in the Bill, because they create a market imbalance and give control as a gateway to large companies that manage browser technology, at the expense of media owners and publishers that are paying journalists and investing in content. It is incumbent upon all else that media owners are able to develop first-party relationships with their audiences and customers to better understand what they need. If anything, we need more control in the hands of the people who invest in creating the content and in paying the journalists who provide those important democratic functions.

[Stephanie Peacock]

Q Is there a concern that centralising cookies by browser will entrench power in the hands of the larger tech companies that own the browsers?

Chris Combemale: It certainly would give even greater market control to those companies.

[Stephanie Peacock]

Q Is the risk in centralising cookies by browser that we could confuse liability, for example who is responsible for a breach of cookie regulation?

Chris Combemale: I think it could be. For us, the essential principle is that a business, whether a media owner, e-commerce business or publishing business, should have control of the relationships between its products and services and its customers and prospects for its customers. By nature, when you give control to a third party, whether a large tech company or another company, you are getting in between the relationship between people and the organisations that they want to do business with and giving control to an intermediary who may not understand. At the least point, if you register with a website after, for instance, changing your browser setting, that should take precedence over the browser setting: your choice to engage with a particular company should always take precedence over a centralised cookie management system.

Neil Ross: I think that what the Government have done in relation to this is quite clever: they have said that their objective is to have a centralised system in the future, but they have recognised that there are a number of different ongoing legislative and regulatory activities that have a significant bearing on that. I think it was only last week that the Government introduced the Digital Markets, Competition and Consumers Bill, clause 20 of which—on conduct requirements—would play a large role in whether you could set up a centralised system, so there is an element of co-ordinating two different but ongoing regulatory regimes. I think we agree with Chris that the steps on analytical cookies now are good but that we need to have a lot more deep thought about what a centralised system may or may not look like and whether we want to go ahead with it.

Chris Combemale: May I come in on that final point? What makes sense to us is a centralised system for managing opt-outs as opposed to managing consent. As the Data and Marketing Association, we operate the telephone preference service and the mailing preference service, which give consumers the opportunity to opt out from receiving unwanted cold calls or unwanted direct mail. There is already a system in place with digital advertising—an icon that people can use to opt out from the use of personal data for personalising digital ads. I think it makes sense that, if people do not want to receive certain things, they can opt out centrally, but a centralised consent opt-in gives too much control to the intermediaries.

[Stephanie Peacock]

Thank you.

[Sir John Whittingdale]

Q Mr Ross, I know that techUK has been supportive of a number of elements of the Bill, particularly around the opportunities created by the use of smart data. Will you set out your view of the opportunities, and how the Bill will help to attain them?

Neil Ross: Smart data is potentially a very powerful tool for increasing consumer choice, lowering prices and giving people access to a much broader range of services. The smart data provisions that the Government have introduced, as well as the Smart Data Council that they are leading, are really welcome. However, we need to go one step further and start to give people and industries clarity around where the Government will look first, in terms of what kind of smart data provisions they might look at and what kind of sectors they might go into. Ultimately, we need to make sure that businesses are well consulted and that there is a strong cost-benefit analysis. We then need to move ahead with the key sectors that we want to push forward on. Similarly to on nuisance calls, we will send some suggested text to the Committee to add those bits in, but it is a really welcome step forward.

[Sir John Whittingdale]

Q Which particular sectors offer the most opportunity?

Neil Ross: I do not want to name specific sectors at this point. We are having a lot of engagement with our members about where we would like to see it first. The transport sector is one area where it has been used in the past and could have a large use in the future, but it is something that we are exploring. We are working directly with the Government through the Smart Data Council to try to identify the initial sectors that we could look at.

[Sir John Whittingdale]

Q Thank you. Mr Combemale, will you set out some of the obstacles for your organisation, and how you would like the Bill to reduce them?

Chris Combemale: I think the single biggest one that has troubled our members since the implementation of GDPR is the issue around legitimate interest, which was raised by the hon. Member for Folkestone and Hythe. The main issue is that GDPR contains six bases of data processing, which in law are equal. For the data and marketing industry, the primary bases are legitimate interest and consent. For some reason it has become widely accepted through the implementation of GDPR that GDPR requires consent for marketing and for community activities. I am sure that you hear in your constituencies of many community groups that feel that they cannot go about organising local events because they must have consent to communicate. That has never been the intention behind the legislation; in fact, the European Court of Justice has always ruled that any legal interest could be a legitimate interest, including advertising and marketing.

If you look at what we do, which is effectively finding and retaining customers, the GDPR legislation says in recital 4 that privacy is a fundamental right, not an absolute right, and must be balanced against other rights, such as the right to conduct a business. You cannot conduct a business without the right to find and retain customers, just as you cannot run a charity without the right to find donors and volunteers who provide the money and the labour for your good cause. The clarification is really important across a wide range of use cases in the economy, but particularly ours. It was recognised in GDPR in recital 47. What the legislation does is give illustrative examples that are drawn from recitals 47, 48 and 49. They are not new examples; they are just given main text credibility. It is an illustrative list. Really, any legal interest could be a legitimate interest for the purpose of data providing, subject to necessity and proportionality, which we discussed earlier with the Information Commissioner.

[Carol Monaghan]

Q We have heard already this morning that a number of words and phrases could have some ambiguity associated with them, such as the word “excessive”, and the Bill allowing certain cookies that are “low risk”. Do you think that the phrase “low risk” is well enough understood?

Chris Combemale: In the sector that I represent, we have a fairly clear understanding of the gradients of risk. As I was saying earlier, many companies do not share data with other companies. They are interested solely in the relationships that they have with their existing customers or prospects. In that sense, all the customer attitudes to privacy research that we do indicates that people are generally comfortable sharing data with companies they trust and do business with regularly.

[Carol Monaghan]

Q Would that then be the definition of low risk?

Chris Combemale: I would not want to suggest what the legal definition is. To us in direct marketing and in the Data and Marketing Association, existing customer relationships—loyal customers who trust and are sometimes passionate about the brands they interact with—are low risk. Higher risk is when you come to share data with other companies, but again much of that activity and data sharing is essential to creating relevance. With the right protections, it is not a hugely high-risk activity. Then you can move on up, so the higher the degree of automation and the higher the degree of third-party data, the greater the risk, and you have to put in place mitigations accordingly. I am not a lawyer—I am just a poor practitioner—so I cannot define it from a legal point of view, but it is clear in the context of our industry how risk elevates depending on what you are doing.

[Carol Monaghan]

Q I might come back to that in a second, but I think Neil wanted to add something.

Neil Ross: I was going to say that you can see how Chris has interpreted it through the lens of his industry, but the feedback we have had from our members, who operate across a range of industries, suggests that there is quite a lot of confusion about what that terminology might mean. The rest of the Bill aims to clarify elements of the GDPR and put them on the face of the Bill, but this provision seems to be going in the other direction. It raises concern and confusion.

That is why our approach has always been that you are going to get more clarity by aligning the Privacy and Electronic Communications Regulation 2003 more with the GDPR, which has clear legal bases, processes and an understanding of what is high and low risk—a balancing test, and so on—than through this fairly broad and poorly understood term “low risk”. We have concerns about how it will operate across a range of sectors.

[Carol Monaghan]

Q Chris, you said that you are not a lawyer and cannot define what low risk is, but there will of course have to be some sort of definition. Have we captured that well enough?

Chris Combemale: Coming back to our discussion about legitimate interest and the proportionality balancing test, or legitimate interest impact assessments, when you are thinking about what you are planning to do with your customers, it is a requirement of good marketing without the legislation, but also within the legislation, to think about how what you are planning to do will impact your customers’ privacy, and then to mitigate. The important thing is not to say, “There’s no risk,” “It is low risk,” or “It is high risk”; it is to understand that the higher the risk, the greater the mitigations that you have to put in place. You may conclude that you should not do something because the risk level is too high. That is what balancing tests do, and decisions and outcomes result from them.

[Carol Monaghan]

Q The potential difficulty here is that the responsibility is being put on the company. You have described a responsible company that categorises levels of risk and takes action accordingly. Without a clear definition, if it were a less scrupulous company, would there be a grey area?

Chris Combemale: We do a lot of work combating rogue traders, and we provide evidence to cases from our work with the telephone preference service and other activities. Rogue traders—especially those with criminal intent—will generally ignore the legislation anyway regardless of what you do and whether it lacks clarity or not, but I think you are right. An important part of GDPR is that it puts a lot of responsibility on companies to consider their particular activity, their particular customer base and the nature of their audience. Age UK, a charity that has a lot of vulnerable elderly customers, has to have greater protections and put more thought into how it is doing things than a nightclub marketing to under-30s, who are very technologically literate and digitally conversant.

When we do customer attitudes to privacy studies, we see three broad segmentations—data unconcerned, data pragmatist and data fundamentalist—and they require different treatment. It is incumbent on any company, in a marketing context, to understand who their audience and their customer base is, and design programmes appropriately to build trust and long-term relationships over time. That is an important element of GDPR, from a marketer’s perspective. I should add that it should not take legislation to force marketers to do that.

[The Chair]

There are five minutes left and there are two Members seeking to ask questions.

[Damian Collins]

Q With regards to children’s data rights, do you think the Bill will have any implications for the way in which the age-appropriate design code has been implemented by companies working within it at the moment? It is not expressly written into the Bill, but do you expect there to be change?

Neil Ross: No, I do not expect so. Given some of the exemptions for further processing, it might help improve compliance with the law, because compliance with the law in the public interest is then a basis on which you could process data further. It might make it easier for companies to implement the age-appropriate design code.

[Damian Collins]

Q Can you give any examples of that?

Neil Ross: It just gives additional clarity on when and where you can use data on various grounds. There are a wide range of circumstances that you can run into in implementing the age-appropriate design code, so having more flexibility in the law to know that you can process data to meet a legal objective, or for a public interest, would be helpful. The best example I can give is from the pandemic: the Government were requesting data from telecoms companies and others, and those companies were unsure of the legal basis for sharing that data and processing it further in compliance with a Government or regulator request. The Bill takes significant steps to try and improve that process.

[Damian Collins]

Q Could you give an example more directly related to children?

Neil Ross: I do not have one to hand, but we could certainly follow up.

[Mike Amesbury]

Q The Bill enables the commissioner to impose a fine of £1,000. Is that a reasonable deterrent?

Neil Ross: That is in relation to clause 85?

[Mike Amesbury]

Q For non-compliance.

Neil Ross: We do not think it is particularly appropriate for this scenario, given that the telecoms operators are just informing the ICO about activity that is happening on their service. It is not that they are the bad actors in the first instance; they are having to manage it. Ultimately, the first step is to clarify the aims of clause 85, and then whether the fine is appropriate is a subsequent question.

[Mike Amesbury]

Q For some companies, £1,000 will be small fry.

Neil Ross: It will vary from company to company. Most companies will always seek to comply with the law. If you feel you need some kind of deterrent, that is something for Parliament to consider. The first step is to make sure that the law is really clear about what companies are being asked to do. At the moment, that is not the situation we are in.

[The Chair]

There are two minutes left. Chi Onwurah has the last question.

[Chi Onwurah]

Q Mr Combemale, you set out some of the challenges of having centralised cookie management, and how that would give more power to the browsers. What you did not set out was how we could give more control and power to customers—citizens—over how they use their data. What are you doing to ensure that consumers have more control over how their data is used? You talked about the little thing that you can click to stop our personal data being used—that has been in place for some time now and it is great. If we have the time, Mr Ross, what is your sector doing as well, because the technology should be there to help and empower people?

Chris Combemale: I think a lot of what our sector does voluntarily—setting aside the legislation—is the creation of what are called permission centres. You will be familiar with them from when you go to a website and it asks about categories of information or products that you are interested in. That allows consumers to express their interest. Within the legislation there is very clear data notification, required at the point that data is collected, which requires companies to ask you what you want to do. Whether it is consent or legitimate interest, consumers always have the right to opt out.

With marketing, there is an absolute right to ask not to receive marketing of any kind, whether that is email, direct mail or telephone, at any time. Companies have an obligation to follow that. When it comes to marketing, which is my subject matter expertise, consumers are very well protected and do exercise their rights to opt out. They are further protected by central services, for example the telephone preference service. That is a law that companies can look up; 70% or so of households have registered their telephone number there. I think there are a large number of protections in place, both through the legislation and voluntarily.

[The Chair]

Q Mr Ross, you have 30 seconds.

Neil Ross: There has been a big drive among many tech companies to explain better how they use and handle data practices. There is a drive within the sector to do that anyway. Some of that has come from legislative regulatory activity—for example, the Online Safety Bill and other places.

One thing I would say about this legislation is that it does give people more control over data through the privacy management frameworks. By taking a less strict tick-box approach to data-handling practices, there is the opportunity for core sectors or interest groups such as trade unions to put forward what their ideal data-handling practice should be for a company. As long as that complies with what the ICO sets out or the broad guardrails, then you can see a range of different handling practices adopted, depending on which sector you are in. That flexibility gives some power back to consumers and other interest groups.

[The Chair]

Gentlemen, you have been brilliant. Thank you very much indeed for your time this morning. We will now move on to the fourth panel.

Examination of Witnesses

10:50

Dr Jeni Tennison, Anna Thomas and Michael Birtwistle gave evidence.

[The Chair]

Q We will now hear oral evidence from Dr Jeni Tennison, founder and executive director of Connected by Data; Anna Thomas, co-founder and director at the Institute for the Future of Work; and Michael Birtwistle, associate director of AI law and regulation at the Ada Lovelace Institute. For this session we have until 11.25 am. Will the witnesses, from right to left, please be kind enough to introduce themselves to the Committee for the record?

Dr Tennison: Thank you very much for inviting me here today. My name is Dr Jeni Tennison. I am the executive director of Connected by Data, which is a campaign to give communities a powerful say in decisions about data. Prior to that I was the CEO of the Open Data Institute. I am also the co-chair of the data governance working group in the Global Partnership on Artificial Intelligence.

Anna Thomas: Good morning and thank you for having me. I am Anna Thomas, a founding director of the Institute for the Future of Work, a research and development institute exploring the impact of new technologies on work and working lives. I was formerly an employment barrister at Devereux Chambers. The institute is also the strategic research partner for the all-party parliamentary group on the future of work.

Michael Birtwistle: Good morning. I am Michael Birtwistle, an associate director at the Ada Lovelace Institute, responsible for law and policy. The Ada Lovelace Institute is an independent research institute with a mission to make sure that data and AI work for people and society. I was previously a policy adviser at the Centre for Data Ethics and Innovation.

[The Chair]

Welcome. Stephanie Peacock will start the questions.

[Stephanie Peacock]

Q Good morning. To go first to Dr Jeni Tennison, do you think the general public and workers have a good level of trust and understanding in terms of how their data is being used? What does the Bill do, if anything, to help build or improve on that trust and understanding?

Dr Tennison: Surveys and public attitudes polling show that when you ask people about their opinions around the use of data, they have a good understanding about the ways in which it is going wrong, and they have a good understanding about the kinds of protections that they would like to see. The levels of trust are not really there.

A poll from the Open Data Institute, for example, shows that only 30% trust the Government to use data ethically. CDEI has described this as “tenuous trust” and highlighted that about 70% of the public think that the tech sector is insufficiently regulated. I do not think that the Bill addresses those issues of trust very well; in fact, it reduces the power individuals have and also the level of collective representation people can have, particularly in the work context. I think this will diminish trust in the way in which data is used.

[Stephanie Peacock]

Q Do you believe the Government have consulted the public and data subjects such as workers appropriately during the process of formulating the Bill?

Dr Tennison: Obviously, there was a strong consultation exercise around the data reform Bill, as it was then characterised. However, there are elements of this Bill, in particular the recognised legitimate interests that are listed, that have not had detailed public consultation or scrutiny. There are also not the kinds of provisions that we would like to see on ongoing consultation with the public on specific questions around data processing in the future.

[Stephanie Peacock]

Q What value do subject access requests hold for citizens, and how will changing the threshold for refusing a request or changing a request to “vexatious or excessive” impact citizens’ ability to exercise their rights?

Dr Tennison: Subject access requests are an important way in which citizens can work out what is happening within organisations with the data that is being held about them. There are already protections under UK GDPR against vexatious or excessive requests, and strengthening those as the Bill is doing is, I think, going to put off more citizens from making these kinds of requests.

It is worth noting that this is a specific design of the Bill. If you look at the impact assessment, this is where most of the cost to business is being saved; that is being done by refusing subject access requests. So I think we should be suspicious about what that looks like. Where we have been looking at the role of subject access requests in people exercising their rights, it is clear that that is a necessary step, and delays to or refusals of subject access requests would prevent people from exercising their rights.

We think that a better way of reducing subject access requests would be to have publication of things like the risk assessments that organisations have to do when there is high-risk processing—so that there is less suspicion on the part of data subjects and they do not make those requests in the first place.

[Stephanie Peacock]

Q Thank you. I have a couple of questions for Anna Thomas now. Do the current laws around automated decision making do enough to protect workers and citizens from harm?

Anna Thomas: Referring partly to our work in “Mind the gap” and “The Amazonian Era”, as well as the report by the all-party parliamentary group on the future of work about use of AI in the workplace, we would say no. The aim of the Bill—to simplify—is very good. But particular areas in the Bill as it stands—eroded somewhat—are particularly problematic in the workplace. The automated ones that you ask about are really important with regard to the reduction of human involvement. But in addition to that are the need to assess in advance what the risks and impacts are, the requirement for consultation, and the access to relevant information. Those are all relevant and overlap with the automated decision making requirement.

[Stephanie Peacock]

Q Linked to that, do you believe that the safeguards outlined in the Bill—having a right to human review, for example—are enough to protect workers from the potential harm of automated decision making?

Anna Thomas: Not in themselves. There is potential, in those areas, to correct that or to improve it in the course of the Bill’s proceedings, in order that the opportunities, as well as the risks, of putting this new Bill through Parliament are seized. But, no, because of the transformation of work and the extent of the impact, as well as the risks, that new technologies and automated technologies are having across work, not just on access to work, but on terms, conditions, nature, quality and models for work, the safeguards—there is, I think, increasing cross-party consensus about this—should be, in those areas, moving in the other direction.

[Stephanie Peacock]

Q My final question is to Michael. Do you believe that the current regulation does enough to govern the use of biometric technologies?

Michael Birtwistle: No, we would say that it does not. The Ada Lovelace Institute published a couple of reports last year on the use of biometric data, arguing for a much stronger and coherent regulatory governance framework for biometric technologies. These are a set of technologies that are incredibly personal. We are used to their being talked about in terms of our faces or fingerprints, but actually it is a much wider range, involving any measurement to do with the human body, which can be used in emotional analysis—walking style or gait, your tone of voice or even your typing style. There is also a set of incoming, next-generation AI technologies that rely quite heavily on biometrics, so there is a question about future-proofing the Bill.

We have made two broad proposals. One is to increase the capability of the Information Commissioner’s Office to look specifically at biometrics—for example, to create and maintain a public register of private entities engaging in processing of biometric data, to have a proper complaints procedure, to publish annual reports and so on. There is a set of issues around increasing the capability of our institutions to deal with that.

Then there is a second question about scope. First, the current focus of biometric data and definition is on identifiability of personal data. There are many potentially problematic use cases of biometric data that do not need to know who you are in order to make a decision about you. We think it would be wise and would future-proof the regulation of this powerful technology to also include classification or categorisation as the purpose of those biometric technologies.

[Damian Collins]

Q You make a very interesting point there, Mr Birtwistle. With automated decision making, a lot of that could be done anonymously. The user is just the end product. They are being targeted through systems and do not need to be identified; the systems just need to know what their data profile is like in order to make a decision.

I am interested in the views of the other members of the panel as well. Do you think there needs to be a greater onus on data controllers to make clear to regulators what data they are gathering, how they are processing it and what decisions are being made based on that data, so that, particularly in an automated environment, while there may not be a human looking at every step in the chain, ultimately a human has designed the system and is responsible for how that system is working?

Michael Birtwistle: I think that is a really important point that is going to be very relevant as we read this Bill alongside the AI White Paper provisions that have been provided. Yes, there is definitely a need for transparency towards regulators, but if we are thinking about automated decision making, you also want a lot of the safeguards and the thinking to be happening within the firms on a proactive basis. That is why the provisions for automated decision making within the Bill are so important. We have concerns around whether the more permissive automated decision making approach in the Bill is actually going to lead to greater harms occurring as, effectively, it turns the making of those automated decisions from a sort of prohibition with exceptions into something that, for anything other than special category data, is permitted with some safeguards, which again there are questions around.

[Damian Collins]

Q On that point, just to be clear, as long as what someone is doing is not clearly and purely illegal, legitimate interest means you can do whatever you want.

Michael Birtwistle: Legitimate interest still has a balancing test within it, so you would not necessarily always be able to show that you had passed that test and to do whatever you want but, certainly, the provisions in the Bill around automated decisions bring legitimate interest into scope as something that it is okay to do automated processing around.

[Damian Collins]

Dr Tennison?

Dr Tennison: On your first point, around the targets of decisions, one of the things that we would really argue for is changing the sets of people who have rights around automated decision making to those who are the subject of the decisions, not necessarily those who data is known about for those decisions. In data governance practice, we talk about these people as being decision subjects, and we think it is they who should have the rights over being informed about when automated decision making is happening, and other kinds of objection and so forth. That is because, in some circumstances, as you said, there might be issues where you do not have information about someone and nevertheless you are making decisions about them, or you have information about a subset of people, which you are then using to make a decision that affects a group of people. In those circumstances, which we can detail more in written evidence, we really need to have the decision subjects’ rights being exercised, rather than the data subjects’ rights —those who the data is known about.

On the legitimate interest point you raised, there is this balancing test that Michael talked about, that balances the interests of data subjects as well. We think that there should also be some tests in there that balance public interests, which may be a positive thing for using data, but also may be a negative thing. We know that there are collective harms that arise from the processing of data as well.

[Damian Collins]

Q I just want to make sure I have understood that point correctly. Let us say that someone is a recipient of an advert, not because they have been personally targeted, but because they have been targeted through data-matching tools such as lookalike audiences on Facebook. Would that be the sort of thing you are referring to?

Dr Tennison: Yes, it could be, or because they are using a specific browser, they are in a particular area from their IP or something like that. There are various ways in which people can be targeted and affected by those decisions. But we are not just talking about targeted advertising; we are talking about automated decisions in the workplace or automated decisions about energy bills and energy tariffs. There are lots of these decisions being made all the time.

[Damian Collins]

Q Is the gig economy an example of where the systems are biased towards workers who are always available for jobs, or biased towards people based on their proximity to a particular location for work?

Dr Tennison: Yes. Or they may be subject to things like robo-dismissal, where their performance is assessed and they get dismissed from the job, or they are no longer given jobs in a gig economy situation.

[Damian Collins]

Q Effectively a form of constructive dismissal.

Dr Tennison: Yes.

[The Chair]

I can see Anna Thomas chomping at the bit.

Anna Thomas: I would back up what Jeni is saying about group impacts in the workplace context. It is very important that individuals know how systems are used, why and where they have significant effects, and that risks and impacts are ascertained in advance. If it is just individuals and not groups or representatives, it may well not be possible to know, ascertain or respond to impacts in a way that will improve and maximise good outcomes for everybody—at an individual level and a firm level, as well as at a societal level.

I can give a few examples from work. Our research covers people being told about the rates that they should hit in order to keep their job, but not about the factors that are being taken into account. They are simply told that if you are not hitting that, you will lose your job. Another example is that customer interaction is often not taken into account, because it is not something that can be captured, broken down and assessed in an automated way by an algorithmic system. Similarly, older workers—they are very important at the moment, given that we need to fill vacancies and so on—are feeling that they are being “designed out”.

Our research suggests that if we think about the risks and impacts in advance and we take proportionate and reasonable steps to address them, we will get better outcomes and we will get innovation, because innovation should be more than simply value extraction in the scenarios that I have set out. We will improve productivity as well. There is increasing evidence from machine learning experts, economists and organisational management that higher levels of involvement will result in better outcomes.

[The Chair]

Mr Birtwistle?

Michael Birtwistle: I very much agree with my other panellists on those points. If you are thinking about concrete ways to improve what is in the Bill, the high level of protection around automated decision making is currently in article 22B. That looks at decisions using special category data, which, as an input, you could also add in there, looking at the output. You could include decisions that involve high-risk processing, which is already terminology used throughout the Bill. That would mean that, where automated decision making is used around decisions that involve high-risk processing, you would need meaningful human involvement, explicit consent or substantial public interest.

[Carol Monaghan]

Q Jeni, can I come back to you on automated decision making? You have suggested that a requirement to notify people when an automated decision is made about them would be a useful inclusion in the Bill. Do you think enough consideration has been given to that?

Dr Tennison: The main thing that we have been arguing for is that it should be the wider set of decision subjects, rather than data subjects, who get rights relating to notification, or who can have a review. It is really important that there be notification of automated decision making, and as much transparency as possible about the details of it, and the process that an organisation has gone through in making an impact assessment of what that might mean for all individuals, groups and collective interests that might be affected by that automated decision making.

[Carol Monaghan]

Q We can probably broadly split these decisions into two categories. Decisions are already being made by algorithms online, according to what we are looking at. If I look up a paint colour online, and then start getting adverts for different paint companies, I am not too worried about that. I am more concerned that decisions could be made in the workplace about me, or about energy tariffs, as we have heard. That is more serious. Is there a danger that if we notify individuals of all the automated decisions that are made, it will end up like the cookie scenario—we will just ignore it all?

Dr Tennison: I do not think it is a matter of notifying people about all automated decision making. The Bill suggests limiting that to legally or otherwise significant decisions, so that we have those additional rights only as regards things that will really have an impact on people’s lives.

[Carol Monaghan]

Q And you are not comfortable that those have been considered properly in the Bill.

Dr Tennison: I am not comfortable that they are directed to the right people.

[Carol Monaghan]

Q The subject, rather than the decision maker.

Dr Tennison: Yes.

[Carol Monaghan]

Anna, did you want to come in on that?

Anna Thomas: The last question about the threshold is really important, and it tends to suggest that work should have separate consideration, which is happening all over the world. Last week, Canada introduced its automated decision-making directive, and extended it to work. We have been working with it on that. Japan has a strategy that deals expressly with work. In the United States there are various examples, including the California Privacy Rights Act, of rules that give work special attention in this context. Our proposal for addressing the issue of threshold is that you should always provide notification, assess, and do your best to promote positive impacts and reduce negative ones if the decision-making impacts access to work, termination, pay, contractual status or terms, and, for the rest, when there is significant impact.

[Carol Monaghan]

Q Is there a danger that automated decisions could impact the Equality Act, if biases are not properly accounted for?

Anna Thomas: Yes, absolutely. In our model, we suggest that the impact assessment should incorporate not just the data protection elements, which we say remain essential, but equality of opportunity and disparity of outcome—for example, equal opportunity to promotion, or access to benefits. That should be incorporated in a model that forefronts and considers impacts on work.

[Mike Amesbury]

Q Anna, how would you strengthen the Bill? If you were to table an amendment around employees and AI, what would it be?

Anna Thomas: I would advise very clear additional rights, and a duty to notify in advance what, how and why AI is being used where it has these impacts, and where it meets the threshold that I was just asked about. I would also advise having more consultation throughout design, development and deployment, and ongoing monitoring, because AI changes, and there are impacts that we have not thought about or cannot ascertain in advance.

There should also be a separate obligation to conduct an algorithmic impact assessment. The Bill does nudge in that direction, but it says that there should be an assessment, rather than a data protection impact assessment. We suggest that the opportunity be grasped of clarifying that—at least in the workplace context, but arguably there are lessons more widely—the assessment ought to cover these fundamental aspects, and impacts at work.

[Dr Huq]

Q It is good to see the Ada Lovelace Institute represented; she was a pioneering woman computer scientist who lived in my constituency, so it is a bit ironic that the one man here is representing the institute.

Michael Birtwistle: My colleagues could not be here, unfortunately, but they would have been better representatives in that sense.

[Dr Huq]

I want to touch on the equality issue again. A 2019 UN report on the digital welfare state made the point that algorithms repeat existing biases and entrench inequalities. How do we get around that? There are a lot of issues around trust and people’s rights and protections when it comes to this data. On top of those, there is this issue. Does the legislation address that? How can we overcome it?

Dr Tennison: As I have mentioned, there need to be more points in the Bill where explicit consideration of the public interest, including equality, is written into the sets of considerations that organisations, the ICO and the Secretary of State need to take into account when they are exercising their rights. That includes ensuring that public interest and equality are an explicit part of assessments of high-risk processing. That will help us to make sure that in the assessment process, organisations are made to look beyond the impacts on individuals and data subjects, and to look at the whole societal and economic impacts—even at the environmental impacts—that there might be from the processing that they are looking to carry out.

Anna Thomas: I agree. To add to what I said before, it would help to require a technical bias audit as well as a wider equality impact assessment. One idea that you may wish to consider is this: in the same way that the public sector has an obligation sometimes to consider the reduction of wider inequalities, you could have—well, not a full private sector model requiring that; that may need to be built up over time. We could, at the very least, require consideration of the desirability of reducing inequalities of opportunity and outcome as part of determining our reasonable and proportionate mitigations in the circumstances; that would be easy to do.

Michael Birtwistle: I agree. There is also a question about institutional capability—ensuring that the institutions involved have the capability to react to the use of these technologies as they evolve. Specifically, it would be great to see the ICO asked in the Bill to produce guidance on how the safeguards in article 22C are to be implemented, as that will have a large effect on how automated decision making will be lived in practice and built into firms. The powers reserved for Ministers around interpreting meaningful human involvement, and legal and similarly significant effect, will also have a big impact. It would make more sense for that to be with the ICO.

[Dr Huq]

Can I add one yes/no question?

[The Chair]

Yes.

[Dr Huq]

Q If we have an already overburdened regulatory framework, and we put AI on top of it, will it just fall through the cracks? Is there a danger that AI gets forgotten?

Michael Birtwistle: Yes, if regulators are not properly empowered.

Anna Thomas: I strongly agree, but they could be properly empowered and resourced, and in some instances given extra powers to interrogate or to redress what they have found. We advised that there should be a forum in 2020, and are delighted to see the Digital Regulation Cooperation Forum. That could be given additional resources and additional bite, and we would certainly like to see work forefronted and involved in activities. The forum would be well placed, for example, to provide dedicated cross-cutting guidance on impacts in work.

Dr Tennison: I agree with the other panellists. The only thing I would add is that I think that the involvement of the public will be absolutely essential for moving trust forward in those circumstances.

[The Chair]

The last question is from Chi Onwurah.

[Chi Onwurah]

Q Dr Tennison, could you give an example of the kind of abuse that you are most concerned about taking place if this Bill is passed unchanged, so that we can better understand your concern? And do I have time to ask—

[The Chair]

You have four minutes.

[Chi Onwurah]

Great. Ms Thomas, presumably all the automated decisions will be subject to employment law. Would employees have the information they need to appeal decisions and take them to an industrial tribunal?

Dr Tennison: You asked what kind of abuse I am particularly concerned about. I echo some of Anna’s concerns around the work context and what that looks like. We have recently been doing some case studies, which again I can share, and they really bring home the kinds of issues that workers are subject to as automated decision making is rolled out in organisations.

More broadly, though, I am concerned about the gradual drift of reducing trust in the public sphere when it comes to the use of data by Governments and organisations. In some ways, I am more concerned about this leading to people not adopting technology and opting out of data collection because they are worried about what might happen. That would hold us back from the progress and the good uses of data that I would really like to see.

Michael Birtwistle: I agree with that very much. We need to think about past public concern around GP data sharing, contact tracing and the Ofqual exams algorithm. When people see their data being used in unexpected ways, or in ways that make them feel uncomfortable, they withdraw their consent and support for that use, and we as a society lose the benefits that data-driven technology can bring.

Anna Thomas: Employment law and the other laws in that context certainly help in some areas; for example, there is unfair dismissal protection, and redundancy protection under the information and consultation regulations. However, it is a patchwork, and it is not clear. Clarity is needed for businesses, to reassure people at work that the principles in the AI White Paper ultimately apply to their data, and to promote prosperity and wellbeing as widely as possible.

[The Chair]

I thank our three witnesses very much indeed; you have all been fantastic. We are very grateful to you for being here. That brings us to the end of our morning session. The Committee will meet again at 2 o’clock, here in the Boothroyd Room, to continue taking oral evidence. We heard from 10 witnesses this morning and will hear from 13 this afternoon.

Ordered, That further consideration be now adjourned. —(Steve Double.)

11:23

Adjourned till this day at Two o’clock.

Data Protection and Digital Information (No. 2) Bill (Second sitting)

Committee stage
Wednesday 10th May 2023 Public Bill Committees

The Committee consisted of the following Members:

Chairs: † Mr Philip Hollobone, Ian Paisley

Amesbury, Mike (Weaver Vale) (Lab)

† Bristow, Paul (Peterborough) (Con)

† Clarke, Theo (Stafford) (Con)

† Collins, Damian (Folkestone and Hythe) (Con)

† Double, Steve (Lord Commissioner of His Majesty’s Treasury)

† Eastwood, Mark (Dewsbury) (Con)

Henry, Darren (Broxtowe) (Con)

Hunt, Jane (Loughborough) (Con)

† Huq, Dr Rupa (Ealing Central and Acton) (Lab)

† Long Bailey, Rebecca (Salford and Eccles) (Lab)

† Monaghan, Carol (Glasgow North West) (SNP)

† Onwurah, Chi (Newcastle upon Tyne Central) (Lab)

† Peacock, Stephanie (Barnsley East) (Lab)

† Richards, Nicola (West Bromwich East) (Con)

Simmonds, David (Ruislip, Northwood and Pinner) (Con)

† Wakeford, Christian (Bury South) (Lab)

† Whittingdale, Sir John (Minister for Data and Digital Infrastructure)

Huw Yardley, Bradley Albrow, Committee Clerks

† attended the Committee

Witnesses

Tom Schumacher, Chief Privacy Officer, Medtronic

Jonathan Sellors MBE, Legal Counsel and Company Secretary, UK Biobank

Harry Weber-Brown, Chief Engagement Officer, ZILO

Phillip Mind, Director, Digital Technology and Innovation, UK Finance

Keith Rosser, Chair, Better Hiring Institute

Helen Hitching, Deputy Director and Chief Data Officer, National Crime Agency

Aimee Reed, Director of Data, Metropolitan Police

Andrew Pakes, Director of Communications and Research, Prospect

Mary Towers, Policy Officer, TUC

Alexandra Sinclair, Research Fellow, Public Law Project

Ms Laura Irvine, convener of the Privacy Law sub-committee, Law Society of Scotland

Jacob Smith, UK Accountability Team Leader, Rights and Security International

Alex Lawrence-Archer, Solicitor for AWO (a data rights agency)

Public Bill Committee

Wednesday 10 May 2023

(Afternoon)

[Mr Philip Hollobone in the Chair]

Data Protection and Digital Information (No. 2) Bill

Examination of Witnesses

Tom Schumacher and Jonathan Sellors gave evidence.

14:00

[The Chair]

Welcome back. We are now on to our fifth witness panel and we will hear from Tom Schumacher, chief privacy officer at Medtronic, who has kindly joined via Zoom, and Jonathan Sellors, legal counsel and company secretary at UK Biobank, who is in the room. We have until 2.25 pm for this panel. Could the witnesses please introduce themselves for the record?

Jonathan Sellors: Good afternoon. I am Jonathan Sellors, general counsel of UK Biobank. To those who may not know, we are the largest globally accessible clinical research resource in the world. We comprise 500,000 UK-based participants, and we make de-identified data available to researchers to conduct clinical research in the public interest.

Tom Schumacher: Thank you so much for inviting me. I am Tom Schumacher, and I work for Medtronic as the chief data and privacy counsel. Medtronic is the world’s largest medical device maker, with 90,000 employees around the world and three manufacturing sites in the UK. We are headquartered in Ireland.

[The Chair]

Thank you both for joining us. Stephanie Peacock.

[Stephanie Peacock (Barnsley East) (Lab)]

Q 82 Welcome to you both. My first question is to both witnesses. How easy is it currently for service users and care teams to access and share all of their relevant health and care data?

Jonathan Sellors: I am not sure I am the expert on this particular topic, because my experience is more research-based than in IT systems embedded in clinical care.

Tom Schumacher: I am also not as intimately familiar with that issue, but I would say that interoperability is absolutely critical. One of the challenges we experience with our technologies—I assume this is also the case for your health providers—is the ability to have high-quality data that means the same thing in different systems. That is a challenge that will be improved, but it is really a data challenge more than a privacy challenge. That is how I see it.

[Stephanie Peacock]

Q Will the new definition in the Bill of what constitutes scientific research help people in your field to conduct more or better research? If so, what impact would this research have on citizens and healthcare?

Jonathan Sellors: I think it is a thoroughly useful clarification of what constitutes research. It is essentially welcome, because it was not entirely clear under the provisions of the General Data Protection Regulation what the parameters of research were, so this is a helpful clarification.

Tom Schumacher: I completely concur: it is very useful. I would say that a couple of things really stand out. One is that it makes it clear that private industry and other companies can participate in research. That is really important, particularly for a company like Medtronic because, in order to bring our products through to help patients, we need to conduct research, have real-world data and be able to present that to regulators for approval. It will be extremely helpful to have that broader definition.

The other component of the definition that is quite helpful is that it makes it explicit that technology development and other applied research constitutes research. I know there is a lot of administrative churn trying to figure out what constitutes research and what does not, and I think this is a really helpful piece of clarification.

[The Minister for Data and Digital Infrastructure (Sir John Whittingdale)]

Q Perhaps I could ask you both to elaborate on how the existing definition and the current lack of clarity have impeded you in carrying out the research you would like to do and how this will change as a result of the Bill.

Tom Schumacher: Maybe I can give an example. One of the businesses we purchased is a business based in the UK called Digital Surgery. It uses inter-body videos to try to improve the surgery process and create technologies to aid surgeons in prevention and care. One of the challenges has been, to what extent is the use of surgery videos to create artificial intelligence and a better outcome for patient research? Ultimately, it was often the case that a particular site or hospital would agree, but it created a lot of churn, activity and work back and forth to explain exactly what was to be done. I think this will make it much clearer and easier for a hospital to say, “We understand this is an appropriate research use” and to be in a position to share that data according to all the protections that the GDPR provides around securing and de-identifying the data and so on.

Jonathan Sellors: I think our access test, which we apply to all our 35,000 users, is to ensure they are bona fide researchers conducting health-related research in the public interest. We quite often get asked whether the research they are planning to conduct is legitimate research. For example, a lot of genetic research, rather than being based on a particular hypothesis, is hypothesis-generating—they look at the data first and then decide what they want to investigate. This definition definitely helps clear up quite a few—not major, but minor—confusions that we have. They arise quite regularly, so I think it is a thoroughly helpful development to be able to point to something with this sort of clarity.

[Sir John Whittingdale]

Q Can you say a little about the extent to which you have been a contributor to the design of the new provisions in the Bill and whether you are happy with the outcome of that?

Jonathan Sellors: The short answer would be yes. I was contacted by NHS England about the wording of some of the consent aspects, some of the research aspects and particularly some of the pseudonymisation aspects, because that is an important wall. Most research conducted is essentially on pseudonymised rather than identifiable data. The way it has been worded and clarified, because it makes an incremental improvement on what is already there in the GDPR, is very useful. I think it is a good job.

Tom Schumacher: Yes, I would say the same. NHS Transformation and the Department for Culture, Media and Sport, particularly Owen Rowland and Elisabeth Stafford, have been very willing to hear points of view from industry and very proactive in reaching out for our feedback. I feel like the result reflects that good co-ordination.

[Damian Collins (Folkestone and Hythe) (Con)]

Q Do you think the definition of what public health means in the context of the Bill is clear?

Jonathan Sellors: Yes, I think it is reasonably clear.

[Damian Collins]

What do you mean by that?

Jonathan Sellors: Like any lawyer, if I were asked to draft something, I would probably always look at it and say I could possibly improve it. However, I would actually look at this and say it is probably good enough.

[Damian Collins]

Q What do you think it means? What is the scope of it?

Jonathan Sellors: If I may, can I come back to you on that with a written response, when I have given it slightly further consideration? Would that be okay?

[Damian Collins]

Q Yes. What I would be interested in is that there could be medical research linked to physical ailments. It could also include mental health, which could, in this context, open up quite a wide range of different fields of research for commercial application as well—understanding people’s stimulus response to fear, anxiety and so on, some of which could have medical application and some of which could be purely commercial.

Jonathan Sellors: I think that, with health-related research that is in the public interest, it is relatively straightforward to spot what it is. Most research is going to have some commercial application because most of the pharma, molecules and medical devices are going to be commercially devised and developed. I do not think that the fact that something has a commercial interest should count it out in any way; it is just about looking at what the predominant interest is.

[Damian Collins]

Q I think that is right. I would welcome it if you were able to write to the Committee with some further thoughts on that. My point, I suppose, is that we have a pretty good idea of what we think public health research could be in this context, whether it is for commercial or non-commercial reasons. However, we want to be certain about whether that opens up other channels of research that others may regard as being not about solving public health problems, but just about the commercial exploitation of data.

Jonathan Sellors: Right, thank you. I understand.

Tom Schumacher: I concur with what the previous speaker said. In the medical device industry, we really focus on what is considered more traditional research, which fits well within the refined research definition that the Bill contains.

[Damian Collins]

Q I have a final question. We have this legislation, and then different tech companies and operating systems have separate guidelines that they work to as well. One of the issues the Government faced with, for instance, the covid vaccine app, was that it had to comply with the operating rules for Google and iOS, regardless of what the Government wanted it to do. Thinking of the work that your organisation has been involved in, are there still significant restrictions that go beyond the legal thresholds because different operating systems set different requirements?

Jonathan Sellors: I do not think I am really the best qualified person to talk about the different Android and Apple operating systems, although we did a lot of covid-related work during the pandemic, which we were not restricted from doing.

Tom Schumacher: I would say that this comes up quite a lot for Medtronic in the broader medtech industry. I would say a couple of things. First, this is an implementation issue more than a Bill issue, but the harmonisation of technical standards is absolutely critical. One of the challenges that we, and I am sure NHS trusts, experience is variability in technical and IT security standards. One of the real opportunities to streamline is to harmonise those standards, so that each trust does not have to decide for itself which international standard to use and which local standard to use.

I would also say that there is a lot of work globally to try to reach international standards, and the more that there can be consistency in standards, the less bureaucracy there will be and the better the protection will be, particularly for medical device companies. We need to build those standards into our product portfolio and design requirements and have them approved by notified bodies, so it is important that the UK does not create a new and different set of standards but participates in setting great international standards.

[Rebecca Long Bailey (Salford and Eccles) (Lab)]

Q In relation to medical research, concerns have been raised that the Bill might risk a divergence from current EU adequacy and that that might have quite a significant detrimental impact on collaboration, which often happens across the EU on medical research. Are you concerned about that, and what should the Government do to mitigate it?

Jonathan Sellors: I think that it is absolutely right to be concerned about whether there will be issues with adequacy, but my evaluation, and all the analysis that I have read from third parties, particularly some third-party lawyers, suggests that the Bill does not or should not have any impact on the adequacy decision at all—broadly because it takes the sensible approach of taking the existing GDPR and then making incremental explanations of what certain things actually mean. There are various provisions of GDPR—for example, on genetic data and pseudonymisation—that are there in just one sentence. It is quite a complicated topic, so having clarification is thoroughly useful, and I do not think that that should have any impact on the adequacy side of it. I think it is a very important point.

Tom Schumacher: I agree that it is a critical point. I also feel as though the real value here is in clarifying what is already permitted in the European GDPR but doing it in a way that preserves adequacy, streamlines and makes it easier for all stakeholders to reach a quick and accurate decision. I think that adequacy will be critical. I just do not think that the language of the text today impacts the ability of it to be adequate.

[Chi Onwurah (Newcastle upon Tyne Central) (Lab)]

Q I know that you are very supportive of the Bill, but I wonder whether you see risks to patients and service users from facilitating a greater sharing of health and care data. Could you each answer that question?

Jonathan Sellors: I think that data sharing, of one sort or another, absolutely underpins medical research. You need to be able to do it internationally as well; it is not purely a UK-centric activity. The key is in making sure that the data that you are using is properly de-identified, so that research can be conducted on patients, participants and resources in a way that does not then link back to their health data and other data.

[Chi Onwurah]

Q So it has to be de-identified. We will return to that. But you do not see any other risks?

Jonathan Sellors: Let me put it this way: poor-quality research, undertaken in an unfortunate way, is always going to be a problem, but good-quality research, which has proper ethical approval and which is done on data that is suitably managed and collated, is an essential thing to be able to do.

[Chi Onwurah]

Q I agree with you. Sorry, I did not quite hear what you said—approval by whom?

Jonathan Sellors: Approval by the relevant ethics committee.

[Chi Onwurah]

Q Right. Is it a requirement of the Bill that the research should have the approval of the relevant ethics committee?

Jonathan Sellors: I do not think that it is a requirement of this Bill, but it is a requirement of pretty much most research that takes place in the UK.

[Chi Onwurah]

Q But not all research, surely, because the definition of research is something that can

“reasonably be described as scientific”

research. You would see concerns, then, if data was to be shared for research that was carried out outside of ethics committee approvals. I do not want to put words into your mouth, but I am just trying to understand.

Jonathan Sellors: Sure. I think it depends on the nature of the data that you are trying to evaluate. In other words, if you are looking at aggregated or summary datasets, I do not think there is any particular issue, but when you are looking at individual-level data, that has to be suitably de-identified in order for research to be safely conducted.

[Chi Onwurah]

Q On the point of de-identifying or pseudonymisation, do you recognise that there have been examples of pseudonymised data that has been re-identified, and that, particularly given the rise of huge datasets, artificial intelligence and so on, there is a risk of un-de-identifying pseudonymised data?

Jonathan Sellors: There is always a risk, but I think the way it is expressed in the Bill is actually quite measured. In other words, it takes a reasonable approach to what steps can constitute re-identification. There are a certain police-related examples whereby samples are found on crime scenes. The individuals can be identified, certainly, if you are on the police database, but if they are not on a reference database, it is extremely difficult to re-identify them, other than with millions of pounds-worth of police work. For all practical purposes, it is actually de-identified. Saying something is completely de-identified is quite difficult.

[Chi Onwurah]

Q Yes, I certainly agree with that—it is almost impossible—but I do think it is possible to re-identify data without spending millions of pounds, especially when it is correlated with other large datasets. Would you recognise that?

Jonathan Sellors: I definitely recognise that. That is one of our principal bits of concern, but usually the identifiers are the relatively simple ones. In other words, you can re-identify me quite easily by my seven-digit postcode and my age and my gender. Obviously, when we release data, we make sure not to do that. Releasing quite a big bit of my genetic sequence does not make me re-identifiable.

[Chi Onwurah]

Currently.

Jonathan Sellors: Currently—I accept that.

Tom Schumacher: I would say a couple of things. It is important to know that the Bill preserves the full array of safeguards in the GDPR around data minimisation, access controls and making sure that you have de-identified the data as much as possible for the purpose you are going to use it for. The opportunity that our company is quite concerned about is that, without some elements of real-world data, we are not going to be able to eliminate the bias that we see in the system. We are not going to be able to personalise medicine, and we are not going to be able to get our products approved, because our regulating bodies are now looking at and mandating that the technology we use is tested in different attributes that are relevant for that technology.

As an example, there are very few data pieces that we need for our digital surgery business, but we might need gender, weight and age. The Bill will allow customisation to say, “Okay, what are you going to do to make sure that only two or three data scientists see that data? How are you going to house it in a secure, separate environment? How are you going to make sure that you have security controls around that?” I think the Bill allows that flexibility to try to create personalised medicine, but I do not believe that the Bill opens up a new area of risk for re-identification provided that the GDPR safeguards remain.

[Chi Onwurah]

Q Let me ask a follow-up question. I recognise that your intent in research is ethical—there are ethics committees involved. Given the definition of scientific research to be anything that can be reasonably described as scientific, what is to stop data being shared for the purposes of, for example, justifying anti-covid vaccination conspiracy theories? Do you recognise that there are purposes that could be described as research but which many people would not want their data to be used for?

Tom Schumacher: In isolation, that would be a risk, but in the full context of the interrelationship between the data owner and controller and the manufacturer, there would be a process by which you would define the legitimate use you are going to use that data for, and that would be something that you would document and would go on your system. I do not believe that using data for political purposes would constitute research in the way that you would think about it in this Bill. Certainly the UK ICO is well regarded for providing useful interpretation guidance. I think that that office would be able to issue appropriate guardrails to limit those sorts of abuses.

Jonathan Sellors: If you look at a scientific hypothesis, it might not be a scientific hypothesis that you like, but it is much better to have it out there in the public domain, where the data that underpins the research can be evaluated by everybody else to show that it is not sound and is not being conducted appropriately.

[Chi Onwurah]

Q Yes, but people might not want their data to be used for that. They would have no control over it in this case.

Jonathan Sellors: There has to be some element of scientific flexibility, but scientists themselves have to be able to make a decision about what they wish to investigate. The main thing to ensure is that it is transparent—in other words, somebody else can see what they have done and the way in which they have done it, so that if it does come up with a conclusion that is fundamentally flawed, that can be properly challenged.

[The Chair]

If there are no further questions, may I thank both of you gentlemen very much indeed for your time this afternoon and for giving us your evidence. It is hugely appreciated. We now move on to the sixth panel.

Examination of Witnesses

Harry Weber-Brown and Phillip Mind gave evidence.

14:23

[The Chair]

Welcome, gentlemen. We will now hear from Harry Weber-Brown, chief engagement officer at ZILO, and Phillip Mind, director of digital technology and innovation at UK Finance. We have until 2.50pm for this session. I now invite the witnesses to please introduce themselves to the Committee for the record, starting with Mr Weber-Brown.

Harry Weber-Brown: Thank you very much. My name is Harry Weber-Brown, chief engagement officer for ZILO Technology Ltd, which is a start-up based in London. I have previously worked for the Investing and Saving Alliance. I have much experience in both smart data, which is dealt with in part 3 of the Bill, and digital identity, which relates to digital verification services in part 2.

Phillip Mind: Good afternoon. I am Phillip Mind, director of digital technology and innovation at UK Finance, a trade body representing over 300 organisations in the bank and finance community. Like Harry, my expertise resides more in parts 2 and 3 of the Bill, although I have a few insights into part 1.

[Stephanie Peacock]

Q Good afternoon to both witnesses. I have a broad opening question. What are the main implications of the Bill’s provisions for the finance sector?

Phillip Mind: The banking community is supportive of the Bill, which is enabling of a digital economy. The data protection reforms reduce compliance burdens on business, which is very welcome. The provisions on digital identity are enabling, and we see digital identity as an essential utility for customers in the future. The provisions on smart data extend an open data regime to other sectors. We already have an open banking regime, and we are keen for that to extend to other sectors. It offers real opportunities in terms of innovative products and services, but we would caution the Committee that there is significant cost and complexity in those measures.

Harry Weber-Brown: The Bill is key to retaining the UK’s place as a hub for technical innovation, and in particular for investment in fintech. It is critical also to make sure the UK remains a global leader in data portability. Building on the work that Phillip just mentioned on open banking, which has over 7 million users among both consumers and small and medium-sized enterprises, it is critical that we make sure we are ahead of the competition.

For the financial services sector, the provisions on ID help to reduce costs for things like onboarding and reduce fraud for things like authorised push payments. It also delivers a better customer experience, so you do not have to rummage around to find your passport every time you want to set up a new account or need to verify yourself to a financial service firm.

Smart data is an opportunity for us to extend ourselves as the world leader in open finance, building on the work of not only open banking but the pensions dashboard, which is yet to be launched but is another open finance scheme. The opportunity to widen up and give consumers more control in their ability to share data is critical for the customer, the economy and the financial services industry.

[Stephanie Peacock]

Q That is great. You both mentioned smart data. For the benefit of the Committee, could you outline some of the progress that the banking and finance industries have made in developing smart data initiatives?

Phillip Mind: In the banking industry we have open banking, which allows customers to choose and consent to allow an authorised third party provider access to their account to provide products and services—access to see the data. It also allows—again, with customer choice and consent—customers to allow a third party provider to make payments on their behalf. That has been hugely enabling. It has enabled growth in all sorts of innovative products and services and growth in fintech in the UK. As Harry mentioned, there are over 7 million active customers at the moment, but it does come with a cost; it is not a free good. Making that service available has involved cost and complexity.

In extending the provisions to other sectors through secondary legislation, it is really important that we are cognisant of the impacts and the unintended consequences. Many sectors have pre-existing data-sharing arrangements, many of which are commercial, and it is important that we understand the relative costs and benefits and how they fall among different participants in the market. My caution to the Committee and to Government is to go into those smart data schemes with eyes open.

[Stephanie Peacock]

Q To develop that point, do you think there are enough safeguards in the Bill to ensure that Ministers assess the commercial sense and the impact of any new smart data regimes before regulating for them?

Phillip Mind: Clauses 62 and 64 make provision for the Secretary of State and Treasury to consult on smart data schemes. We think that those provisions could be strengthened. We see a need for impact assessments, cost-benefit analysis and full consultation. The Bill already allows for a post-implementation review, and we would advise that too.

Harry Weber-Brown: I think the other one to call out is the pensions dashboard, which has been driven out of the Money and Pensions Service. Although it has not actually launched yet, it has brought the life assurance industry on the site to develop free access to information. The consumer can see all their pensions holdings in a single place, which will then help them to make better financial decisions.

I think my former employer, the Investing and Saving Alliance, was working on an open savings, investments and pensions scheme. Obviously, that is not mandatory, but this is where the provision for secondary legislation is absolutely imperative to ensure that you get a wide scope of firms utilising this. At the moment, it is optional, but firms are still lining up and wanting to use it. There is a commitment within the financial services industry to do this, but having the legislation in place—secondary legislation, in particular—will ensure that they all do it to the same standards, both technical and data, and have a trust framework that wraps around it. That is why it is so imperative to have smart data.

[Sir John Whittingdale]

Q Would you say a little about the international position? You referred to the UK’s position as a leader in this field. To what extent is that the case? What are the benefits, and what is the risk to the UK’s position if we do not make the changes proposed in the Bill?

Harry Weber-Brown: In part 2 or part 3 of the Bill? The digital verification services or smart data?

[Sir John Whittingdale]

I will come on to digital verification. Let us focus on smart data, to begin with.

Harry Weber-Brown: On that, Australia is certainly one of the leaders. The consumer has a data right under legislation that enables them to recall information from across a variety of sectors, not just financial services, and to have their information in a structured format shared with a data consumer—a third-party provider in open banking. Things are afoot. A lot of work is going on in the States, but less in Europe, interestingly. Legislation is coming through, but I think the big country to watch from our perspective is Australia and what has happened there. Theirs is a more far-reaching approach than, say, we have. That is for the smart data side.

There is a risk that if we do not extend that data right to other financial services, the consumer has a very limited view of what they can actually share. They can share their bank account details and possibly their pensions data as well, but what about their savings and investments, certainly in non-pension type wrappers? Give the consumer a full, holistic view of all their holdings and their debt as well, so that they can see their balance, as it were, and make better financial decisions. That is why we think it is so important to have part 3 of the Bill go through and for secondary legislation to follow behind it.

There is a risk that if we do not do that, the consumer has a very fragmented view. Does that mean that overseas, where it is legislated for, the consumer would have a more holistic view of everything? Would that drive investment overseas, rather than into the UK? As Phillip said, open banking has really heralded a range of fintech providers being able to consume data and provide value-added services on top of that banking data. I think it rebalances the marketplace as well.

Phillip Mind: To build on Harry’s remarks, I think that the real opportunity is for the UK to build a flourishing fintech industry. We have that already; open banking is actually one of our exports. Our way of doing open banking—the standards and the trust framework—has been a successful export, and it has been deployed in other jurisdictions. The opportunity around open data is to maintain that competitiveness for UK fintech when it is trading abroad.

Most of the consequences of extending beyond open banking into other smart data schemes impact UK businesses and consumers. I do not necessarily see that there is a competitiveness issue; it is bounded within the domestic economy.

[Sir John Whittingdale]

Q Moving on to the digital identity provisions, clearly some people are already familiar with this, but there is still a degree of suspicion. To what extent do you think that the consumer needs persuasion about the security and the benefits of digital identity services? Do you see that as being addressed by the provisions in the Bill?

Harry Weber-Brown: That is a very good question. I did quite a lot of consumer research in my previous capacity, and consumers are initially quite sceptical, asking “Why are you asking me for identity details and things?” You have to explain fully why you are doing that. Certainly having Government support and things like the trust framework and a certification regime to make sure that the consumer knows whom they are dealing with when they are passing over sensitive data will help to build the trust to ensure that consumers will utilise this.

The second part to that is what types of services are built on top of the identity system. If I have the identity verified to an AML—anti-money laundering—standard for financial services, I could use it for a whole suite of other types of activity. That could be the purchase of age-restricted products, or sharing data with my independent financial adviser; it could reduce fraud in push payments, and so on. There is a whole suite of different types of services; you would not be using it just for onboarding. I think the Government support of this under digital verification services, part 2 of the Bill, is critical to make sure it happens.

It is opt-in. We are not saying to people that they have to get an identity card, which obviously is not hugely popular; but if we can demonstrate the value of having a digital identity, with support and trust—with the trust framework and certification with Government—we will not necessarily need to run a full marketing campaign to make sure that consumers use this.

Look at other territories—for example, Norway with Vipps, or Sweden’s BankID. I think about 98% of the population now use ID in a digital format; it is very commonplace. It is really a question of looking at the use cases—examples of how the consumer could utilise this—and making sure they receive utility and value from the setting up and the utilisation of the ID. The ID by itself is not necessarily compelling enough; the point is what you can use it for.

Phillip Mind: Trust and acceptance are key issues, and the Bill lays the legislative foundations for that. We already assert our identity digitally when we open accounts, but we do so on a one-off basis. The challenge is to go from doing so on a one-off basis to creating a digital token that is safe and secure and that allows us to reuse that digital identity. For that to work, that token has to be widely accepted, and that is a really complex strategic challenge, but the Bill lays the foundations.

We will transact digitally more and more; that is for sure. At the moment, we have a consultation, from the Treasury and the Bank of England, on a central bank digital currency. Arguably, that would benefit hugely from a reusable digital identity, but we need to be able to create the token in the right way. It could be enabling for people who have access to a smartphone but do not have a passport or driving licence; it could also build inclusion, in terms of identity. So we are very supportive of a reusable digital identity, but it is a big challenge, and the challenge is gaining trust and acceptance.

[Damian Collins]

Q Mr Weber-Brown, you in particular have spoken about the consumer benefits of data sharing—having a wider choice of products and services. What do you see as the principal business benefits for financial service providers? How wide would you like the scope of their access to data to be?

Harry Weber-Brown: Financial services obviously rely heavily on data to be able to fashion their products accordingly and make them personal, so I think it is critical to have a smart data regime where everything is collected in a single format—what is known as an API, an application programming interface, which is a common way of securely sharing data.

Some of the other use cases from smart data that would benefit business would be things like sharing data around fact find. For example, if someone wants to instruct an independent financial adviser, could they not use this as a way of speeding up the process, rather than having to wait on letters of authority, which are written and take time? Similarly, with pension providers, if I wanted to move from one pension to another or to consolidate things, could we use the smart data to get an illustration of what impact that might have, so that before I ported it over I could see that?

For big financial services firms—well, for all of them—efficiencies are delivered because, as my colleague said, we are using digital as opposed to having to rely on manual processing. As long as the safeguards are put in place, that spawns a whole array of different types of use case, such as with regulatory reporting. If I need to report things to the regulator, could I use smart data provision to do that? That would benefit businesses. A lot of the financial services industry still relies on reporting on Excel spreadsheets and CSV files, so if we can digitise that, it would certainly make it a much more efficient economy.

[Damian Collins]

Q Can you understand that there might also be concerns on the consumer side about data profiling consumers based on risk? That would make a lot of sense for financial services. You have described certain financial products, but equally there are people offering loans, mortgages, insurance and things like that who will be very keen to understand more about their customers before pricing their products accordingly.

Phillip Mind: A digital identity gives customers more control. One of the issues that we face at the moment when we present a passport or driving licence is that we cannot minimise the data there. There is a data minimisation opportunity and benefit.

For businesses and customers, too, identity is a key issue when we transact digitally. There are risks around profiling, but there are real opportunities around anti-fraud as well. Being absolutely clear about who we are transacting with and being able to prove incontrovertibly who we are through a safe and secure token will deliver huge benefits to the economy.

[Damian Collins]

We talked in the previous session about the undoubted benefits, which you have set out clearly. Equally, however, consumers will still want to know what sort of data about them is being used and who has access to it. For example, if a video games maker is profiling the attitudes of players to risk, in order to stimulate them with risk-and-reward opportunities within a game like Fortnite, consumers might understand how that makes their gameplay more interesting. They might consent to that, but they might not necessarily want a financial services provider to have access to that information, because it could create a picture of them that is not flattering.

Harry Weber-Brown: That is a perfectly good challenge. There is a spawning part of the industry around consent dashboards. The idea there is that we put much more control in the hands of the consumer, so that they can see where they have given consent to share data and what data has been shared, while also having the right of revocation and so on. There are technical workarounds to ensure that consumers are much more empowered to control their data. Certainly the legislation supports that, but there will be the technical implementation that sits behind it to ensure that the GDPR is abided by and that the smart data will facilitate better services to consumers. The technology is the answer, but the smart data will open up the opportunity to make sure that the consumer is protected, while with things like consent dashboards they can take better control of where their data is being shared.

Phillip Mind: The interesting thing about digital identity is that it creates a tether. In the future, you will be able to tether digitalised tokens such as securities or deeds to an identity in a safe way, but you could also tether consent to a digital identity, giving a customer or citizen a more holistic view of what they have consented to and where. As Harry says, for those who have real data literacy issues, we will see intermediaries offering services around consent. Those services exist in other jurisdictions.

[Damian Collins]

I think the Estonian digital ID model works in a very similar way.

[Chi Onwurah]

Q You have both spoken very passionately, if I may say so, about the importance of citizens being in control of their data, particularly with open banking. We all take very seriously our financial data and the importance of trust and empowerment in these services. Can you say how the Bill will improve trust and control for citizens, or how it should do so?

Harry Weber-Brown: Part 2 of the Bill sets out the trust framework, which was being developed by the then Department for Digital, Culture, Media and Sport and which now comes under the Department for Science, Innovation and Technology. It will give certainty to the marketplace that any firm that wishes to store data—what is commonly known as an identity provider—will have to go through a certification regime. It will have to be certified against a register, which means that as a consumer I will know that I can trust that organisation because it will be following the trust framework and the policies that sit within it. That is critical.

Similarly, if we are setting up schemes with smart data we will need to make sure that the consumer is protected. That will come through in secondary legislation and the devil will be in the detail of the policies underpinning it, in a similar way to open banking and the pensions dashboard.

Further to the previous session, the other thing I would say is that we are talking on behalf of financial services, but parts 2 and 3 of the Bill also refer to other sectors: they apply equally to health, education and so on. If as a consumer I want to take more control of my data, I will want to be able to use it across multiple services and get a much more holistic view not just of my finances, but of my health information and so on.

One area that is particularly developing at the moment is the concept of self-sovereign identity, which enables me as a consumer to control my identity and take the identity provider out of the equation. I do not want to get too technical, but it involves storing my information on a blockchain and sharing my data credentials only when I need to do so—obviously it follows data minimisation. There are evolving schemes that we need to ensure the Bill caters for.

[Chi Onwurah]

Q Thank you very much for those points.

You mentioned data verification services. Briefly, can you help the Committee to understand who would be providing those services and who would be paying for them? You gave the example of tethering my property or other ownership. Who would be paying in that case? Would I be paying for the rest of my life to keep that data where it is? How do you see it working?

Phillip Mind: Who will provide the services? There is already a growing list of verified providers. There is a current market in one-off digital identity services, and I think many of those providers would step in to the reusable digital identity market.

What is the commercial model? That is a really good question, and frankly at this point I do not have an answer. That will evolve, but within the frameworks that are set up—trust schemes, in the jargon—there will be those who provide digital identity services and those organisations that consume them, which could be retailers, financial services providers or banks. It is likely that the relying parties, the consumers, would pay the providers.

Harry Weber-Brown: But not the individual consumers. If you wanted to open a bank account, and the bank was relying on identity measures provided by fintech, the bank would pay the fintech to undertake those services.

[The Chair]

We have time for a very quick question from Rupa Huq, with very quick answers.

[Dr Rupa Huq (Ealing Central and Acton) (Lab)]

Q UK Finance’s members are all the big banks—is that right?

Phillip Mind: We represent more than 300 organisations in the banking and finance community. Some are big banks and some are quite small fintechs, so there is quite a spectrum.

[Dr Huq]

Q Okay. The dealings that I have had with you have been about the bank card phenomenon. We know that there is public mistrust in the consumer banking sector about how our data is controlled. How will you ensure that the Bill does not leave behind those people who are not online? That is what the banking hubs are aimed at, is it not? There is a whole loneliness agenda, as well as issues relating to the elderly.

[The Chair]

You have 30 seconds to answer.

Phillip Mind: That is a big challenge. It is really important that people are not left behind and that they have the ability to create a kind of digital identity. As a society, we will have to work very hard to enable that. That is a responsibility that falls not on banks, but on other organisations that will help citizens to create these identities.

[The Chair]

Thank you very much indeed for your evidence this afternoon and for giving us the benefit of your time. We appreciate it.

Examination of Witness

Keith Rosser gave evidence.

14:50

[The Chair]

Welcome, Mr Rosser. We have just 15 minutes, until 3.05 pm, for this session. Would you kindly introduce yourself to the Committee for the record?

Keith Rosser: My name is Keith Rosser. I am the chair of the Better Hiring Institute.

[Stephanie Peacock]

Q Good afternoon. What are the main implications of the Bill for employers? Specifically, how will enabling greater use of a digital verification service help employers to make hiring decisions?

Keith Rosser: Employers have been making hiring decisions using digital identity since 1 October, so we are a live case study. The biggest impact so far has been on the speed at which employers are able to hire staff and on the disconnection between where people live and the location of their job. For example, people in a digital identity scheme could apply for work, get a job and validate who they are without ever necessarily having to go and meet the employer. It is really important across the regions, from St Austell to Glasgow, that we are opening up job opportunities across the UK, including in some of our urban areas—West Bromwich, Barnsley and others—where people get greater job opportunities from where they live because they are not tied to where the employer is. It has had a profound effect already.

We recently looked at a study of 70,000 hires or people going through a hiring process, and 83%—some 58,000—opted to take the digital identity route. They did it in an average time of three minutes and 30 seconds. If we compare that with having to meet an employer and go through a process to provide your physical documents, there is a saving of around a week. If we think about making UK hiring the fastest globally, which is our ambition, people can start work a week earlier and pay taxes earlier, and we are cutting waiting lists and workloads. There is a huge positive impact.

In terms of employers making those hiring decisions, technology is so much better than people at identifying whether a document is genuine and the person is who they say they are. In that case study, we found that 200 of the 70,000 people going through the process had fake documents or fraudulently obtained genuine documents. The question is, would the human eye have spotted that prior to the implementation of digital identity? I am certain that it would not have done. Digital identity is really driving the potential for UK hiring to be a shining example globally.

[Stephanie Peacock]

Q Do you think the provisions in the Bill will help to improve public trust in digital identities?

Keith Rosser: From that 70,000 example, we have not seen evidence yet that public trust has been negatively impacted. There are some very important provisions in the Bill that have to go a long way to assuring that. One is the creation of a governance body, which we think is hugely important. There has to be a monitoring of standards within the market. It also introduces the idea of certifying companies in the market. That is key, because in this market right now 30% of DVSs—nearly one in three companies—are not certified. The provision to introduce certification is another big, important move forward.

We also found, through a survey, that we had about 25% fewer objections when a user, company or employer was working with a certified company. Those are two really important points. In terms of the provision on improving the fraud response, we think there is a real opportunity to improve what DVSs do to tackle fraud, which I will probably talk about later.

[Sir John Whittingdale]

Q Perhaps I could ask you to expand on that now. To what extent would you say that some providers that are not certified are not meeting the standards necessary, or in some cases even promoting fraud?

Keith Rosser: I have every reason to believe that organisations not certified will not be meeting anywhere near the standards that they should be meeting under a certified scheme. That appears really clear. They certainly will not be doing as much as they need to do to tackle fraud.

My caveat here is that across the entire market, even the certified market, I think that there is a real need for us to do more to make sure that those companies are doing far more to tackle fraud, share data and work with Government. I would say that uncertified is a greater risk, certainly, but even with certified companies we must do more to make sure that they are pushed to meet the highest possible standards.

[Sir John Whittingdale]

Q So would you expect that as a result of the Bill, the bar to obtain certification will be higher?

Keith Rosser: Yes. The requirement on DVSs to tackle fraud should be higher than it currently is.

[Damian Collins]

Q I want to follow on from the Minister’s questions. Looking at other legislation that is going through Parliament, particularly the anti-fraud provisions in the Online Safety Bill, one of the important areas is the extent to which regulators should expect companies to have good upstream solutions in place to combat fraud. Rather than chasing every example that they come across, they need things that block it in the first place. Do you see the provisions in this Bill as being helpful? Would you expect regulators to act on that and to direct companies to use systems that are known to be safe?

Keith Rosser: Absolutely. I will give a quick example relating to the Online Safety Bill and hiring, which I am talking about. If you look at people getting work online by applying through job boards or platforms, that is an uncertified, unregulated space. Ofcom recently did research, ahead of the Online Safety Bill, that found that 30% of UK adults have experienced employment scams when applying for work online, which has a major impact on access to and participation in the labour market, for many reasons.

Turning the question the other way around, we can also use that example to show that where we do have uncertified spaces, the risks are huge, and we are seeing the evidence of that. Specifically, yes, I would expect the governance body or the certification regime, or both, to really put a requirement on DVSs to do all the things you said—to have better upstream processes and better technology.

Also, I think there is a big missing space, given that we have been live with this in hiring for eight months, to provide better information to the public. At the moment, if I am a member of the public applying for a job and I need to use my digital identity, there is no information for me to look at, unless the employer—the end user—is providing me with something up front. Many do not, so I go through this process without any information about what I am doing. It is a real missed opportunity so far, but now we can right that to make sure that DVSs are providing at least basic information to the public about what to do, what not to do, what questions to ask and where to get help.

[Chi Onwurah]

Q Thank you very much for your evidence so far. It is going to be informative about the use of digital ID in recruitment. You said earlier that it helps to separate away from geography, which implied that the digital ID did not reference the location or the home address of the person who was being ID’d. What does the digital ID ID? Part of the reason behind that question is this: is it simply providing identification, or could it also be used as part of the triage process? Can that be done algorithmically, with some of the dangers that we see in algorithmic, automated decision making?

Keith Rosser: Those are several really good questions. I will use an example about location from the other perspective, first of all. At the moment, Home Office policy has not caught up with digital identity, and we are addressing that. There is a real opportunity to right that. It means that one in five work seekers right now cannot use digital identity to get a job, because they do not have an in-date British or Irish passport. If you have a visa or an in-date British or Irish passport, that is fine, but if you are among the one in five people in the country who do not have an in-date passport, you cannot. Those people have to visit the premises of the employer face to face to show their documents, or post their original documents across the UK.

This has really created a second-class work seeker. There are real dangers here, such as that an employer might decide to choose person one because they can hire them a week faster than person two. There is a real issue about this location problem. Digital identity could sever location to allow people more opportunities to work remotely across the UK.

There were really good questions about other information. The Bill has a provision for other data sharing. Again, there is the potential and the opportunity here to make UK hiring the fastest globally by linking other datasets such as HMRC payroll data. Rather than looking at a CV and wondering whether the person really worked in those places, the HMRC data could just confirm that they were employed by those companies.

There is a real opportunity to speed up the verification but, as I want to acknowledge and as you have referred to, there is certainly also a risk. Part of our mission is to make UK hiring fairer, not just faster and safer. I want to caution against going to a degree of artificial intelligence algorithmic-based hiring, where someone is not actually ever in front of a human, whether by Teams video or in person, and a robot is basically assessing their suitability for a job. We have those risks and would have them anyway without this Bill. It is really important as we go forward that we make sure we build in provisions somewhere to ensure that hiring remains a human-on-human activity in some respects, not a completely AI-based process.

[The Chair]

Mr Rosser, thank you very much indeed for your evidence this afternoon. We are grateful for your time, sir.

Examination of Witnesses

Helen Hitching and Aimee Reed gave evidence.

15:01

[The Chair]

Welcome, ladies. We have until 3.30 pm for this session. Will the witnesses please be kind enough to introduce themselves to the Committee for the record? Let us start with Helen Hitching.

Helen Hitching: Good afternoon. I am Helen Hitching, Chief Data Officer for the National Crime Agency, and this is my first time in front of a Committee.

[The Chair]

Welcome and thank you. Aimee Reed?

Aimee Reed: Hello, everybody. This is also my first appearance in front of a Bill Committee. I am the Director of Data at the Metropolitan Police Service. For my sins, I also volunteer to lead all 43 forces on data; I am chair of the national police data board. I am here today in that capacity as well.

[Stephanie Peacock]

Q You are both very welcome. My first question is to Aimee. Currently, police are required by section 62 of the Data Protection Act 2018 to log their justification for accessing specific data records; this Bill, of course, changes that. How time consuming is that requirement currently for officers?

Aimee Reed: It is a big requirement across all 43 forces, largely because, as I am sure you are aware, we are operating on various aged systems. Many of the technology systems across the policing sector do not have the capacity to log section 62 requirements, so police officers are having to record extra justification in spreadsheets alongside the searches and release of information that they deliver. So the requirement is a considerable burden across all the forces.

[Stephanie Peacock]

Q Helen, how, if at all, will listing as a recognised legitimate interest

“detecting, investigating or preventing crime”,

to quote the new definition, aid the tackling of serious crime in the UK?

Helen Hitching: Sorry—could you repeat that?

[Stephanie Peacock]

Sure. My understanding of the legislation in front of us is that if the Bill becomes law,

“detecting, investigating or preventing crime”

will be listed as a recognised legitimate interest and therefore be subject to separate, or slightly amended, data rules. How will that change help tackle serious crime in the UK?

Helen Hitching: I think it will bring a level of simplicity across the data protection environment and make sure that we can share data with our policing colleagues and other services in a more appropriate way. It will make the whole environment less complex.

[Stephanie Peacock]

Q I have a connected but slightly separate question. Would being able to apply for a joint designation notice with the intelligence services aid competent authorities in targeting serious and organised crime, and if so, how?

Helen Hitching: Yes, it will aid it. Again, it brings in the ability to put the data protection framework on the same level, so we can share data in an easier fashion and make it less complex.

[Sir John Whittingdale]

Q Can you say a little bit more about the implications of personal data sharing between countries, the extent to which that might lead to a lowering of standards of protection and how we safeguard against that?

Helen Hitching: The agency does not believe that those safeguards will be lowered. We will still not be able to share data internationally with countries that do not have the same standards that are met by the UK. It will provide greater clarity about which regimes should be used and at which point. The standards will not reduce.

[Sir John Whittingdale]

Q You need to be satisfied that the third country maintains the same level of data protection standards that exists in the UK. To what extent has that been an impediment for data sharing?

Helen Hitching: The agency has had to undertake a test to make sure that there is adequate or, essentially, equivalent protection. That standard is now changing to “not materially lower”, so it will be a lot easier to understand where those protection levels are the same as or not materially lower than the UK’s. It will be simplified a lot.

[Sir John Whittingdale]

Q On a separate issue, at the moment we have a range of bodies responsible for different aspects of surveillance, such as the Biometrics Commissioner, the Investigatory Powers Commissioner and the Surveillance Camera Commissioner. Those are being brought together into either the Information Commissioner or the Investigatory Powers Commissioner. To what extent do you think that will improve the overall oversight of surveillance?

Aimee Reed: Policing thinks that that will significantly simplify things. It will not reduce the level of oversight and scrutiny that will be placed upon us, which is the right thing to do. In terms of the simplicity of that and the regimes that we are under, we are very supportive of that change.

Helen Hitching: Likewise, we are supportive and welcome the simplification. We do note, however, that the Biometrics Commissioner currently has a keen focus on developing technology in a legal manner and consults with the public. We would ask that there remains a focus on that oversight of biometrics, to assure the public that that work remains a priority once the regulation of biometrics transfers to the Information Commissioner’s Office and to make sure that that focus is retained.

[Damian Collins]

Q How easy do you find it to gather data as part of investigations at the moment, particularly if you are working with companies that provide services to individuals? Do you think the provisions in the Bill will make that any easier?

Aimee Reed: On balance, it will make things easier. We are retaining the very different sections of the Act under which different organisations operate, and the sections that look to improve joint working across part 3 and part 4 agencies are very welcome. At the moment that is not about simplifying the relationships between those in, say, part 2 and part 3, albeit data sharing is entirely possible. In essence, it is going to get simpler and easier to share data, but without losing any of the safeguards.

[Damian Collins]

Q In terms of criminal investigations, practically how easy is it to get hold of data and information that you consider to be important, particularly if it is from private companies?

Aimee Reed: It is not as easy as we would like it to be, and provision is not made in the Bill to make that easier. There are some discussions about it going into the Online Safety Bill and other areas. It could be easier. We would push harder in the future, but at the moment, getting parity across the other areas and around national security is a focus that we welcome.

Helen Hitching: I want to pick up on the fact that safeguards are not reducing. It is key that the agency notes the point that our safeguards are not being lowered because of this.

[Mark Eastwood (Dewsbury) (Con)]

Q I have been on the parliamentary police and fire service scheme, so I have spent a lot of time with the police. One of the big frustrations from the police’s point of view is the lack of free flow of information, particularly when it concerns charging decisions, along with redaction, which potentially causes some antagonism between the two. I know this is not strictly covered in the Bill, but would it be beneficial to both parties if you were able to share unredacted information before a charging decision is made?

Aimee Reed: I will answer that in respect of where we are now in national policing. It would be of considerable benefit if the guidance was clearer that we could share information without having to redact it, certainly pre-charge, to enable better and easier charging decisions—to be honest—within the Crown Prosecution Service. It would also reduce the current burden on officers: you can think about the volume of data they have to hand over, and it can be video, audio, transcripts—it is not just witness statements, as it used to be 20 or 30 years ago. Reducing that burden would be significant for frontline officers and unleash them to be able to do other things.

[Mark Eastwood]

Q So it would be an advantage for the Government to look into including that.

Aimee Reed: It certainly would. It is not that we cannot do that now; I just think the guidance could be clearer. It would put it into sharper relief if we could release that burden from policing to the CPS and the CPS felt confident that that was within the rules.

Helen Hitching: The agency agrees with that—there would be the same impact.

[Chi Onwurah]

Q I think you implied that there was data that you would like to have access to but currently do not have access to. Can you elaborate on what data you do not have access to in terms of data sharing and the barriers? What would be helpful for investigations?

Aimee Reed: It is not so much about specific datasets; it is about synchronisation and the speed with which you can exchange data that enables you to make better decisions. Because the Data Protection Act is split into three parts, and law enforcement quite rightly has a section all of its own, you cannot utilise data analytics across each of the parts. Does that make sense? If we wanted to do something with Driver and Vehicle Licensing Agency data and automatic number plate recognition data, we could not join together those two large datasets to enable mass analysis because there would be privacy rights considerations. If want to search datasets from other parts of that Act, we have to do that in quite a convoluted administrative way that perhaps we can share within law enforcement. It is more about the speed of exchange.

[Chi Onwurah]

Q Is it about the speed of exchange with other Government agencies or with local government agencies?

Aimee Reed: It is more with our local partners. I am sure that our partners would say they are equally frustrated by the speed at which they can get data from the police in large datasets to enable them to make better decisions in their local authorities. That is just how that Act was constructed, and it will remain so. The recent ICO guidance on sharing has made that simpler, but this realm of the Bill will not make that synchronisation available to us.

[Chi Onwurah]

Q Do you think it should be available to you? Are there reasons why it is not available to you?

Aimee Reed: It is about getting right the balance between what we do with people’s personal data and how the public would perceive the use of that data. If we just had a huge pot where we put everybody’s data, there would be real concerns about that. I am not suggesting for a second that the police want a huge pot of everybody’s data, but that is where you have to get the balance right between knowing what you have and sharing it for the right purpose and for the reason you collected it in the first place.

[Chi Onwurah]

Q Just to follow up on the questions about the different types of regulation, do you feel that the balance has been struck appropriately when it comes to biometric data, particularly for facial recognition, for example?

Helen Hitching: Sorry—could you repeat that?

[Chi Onwurah]

Has the balance between sharing and the regulation of biometric data, particularly facial recognition data, been struck in the right way?

Helen Hitching: I do not think facial recognition data is captured.

Aimee Reed: On facial recognition, given that we have deployed it—very high profile—I think that the balance is right. We have learned a lot from the South Wales judgment and from our own technical deployments. The Bill will also highlight how other biometric data should be managed, creating parity and an environment where biometric data that we do not yet have access to or use of is future-proofed in the legislation. That is really welcome.

[Rebecca Long Bailey]

Q Helen, you mentioned that you are broadly supportive of the abolition of the Biometrics Commissioner and the Surveillance Camera Commissioner, but that that abolition will not reduce the existing level of oversight. Now seems to be the time to request additional resources if you did not feel that the new commissioners would be adequately resourced, so do you have confidence that the Investigatory Powers Commissioner has sufficient resources and expertise to take on the functions it has to? Similarly, does the Information Commissioner have sufficient resources and expertise to oversee regulation in this area?

Helen Hitching: It is difficult for the agency to comment on another organisation’s resources and capabilities. That question should probably be posed directly to them. The Information Commissioner’s Office already deploys resources on issues related to law enforcement data processing, including the publication of guidance. From a biometrics perspective, the casework is moving to the IPC, so from a resourcing perspective I think it would have adequate casework provision and expertise.

Aimee Reed: I echo the comments about expertise, particularly of the Investigatory Powers Commissioner. I think that the expertise exists but, like Helen, whether it has enough resources to cope with the casework I presume is a demand assessment that it will do in response to the Bill.

[Rebecca Long Bailey]

Q I have a final question for you, Aimee. There are concerns, particularly given that the Information Commissioner’s Office 2021 data protection audit report gave an assurance rating of “limited” to the Met’s policies on records management. How can you reassure the public, given that there will be such an expansion of powers in the area, that the Met will not receive a similar report over the next 12 months?

Aimee Reed: That is a very topical question today. The first thing to say is that I am not sure I agree that this is a large expansion of our access to personal data; I think it is a simplification of the understanding of what we can do as a law enforcement body. All the same safeguards and all the same clear water will be in place between the different parts of the Act.

We did indeed get a “limited” rating on records management, but as I am sure you are aware, we were assessed on three areas, and we got the second highest grading in the other two: the governance and accountability of our management data; and our information risk management. They came out higher.

What have we done since 2021? We have done quite a lot to improve the physical and digital records management, with greater focus on understanding what data we hold and whether we should still hold it, starting a review, retain and deletion regime. We now have an information asset register and a ROPA—record of processing activities. The previous commissioner, Cressida Dick, invested a significant amount in data management and a data office, the first in UK policing. The new commissioner, as I am sure you have seen, is very committed to putting data at the heart of his mission, too. We have already done quite a lot.

The Bill will simplify how we are able to talk to the public about what we are doing with their data, while also reassuring them about how we use it. We are in a very different place from where we were 12 months ago; in another 12 months, it will be even more significantly improved. We have just worked with the Open Data Institute to improve how open we will be with our data to the public and partners in future, giving more to enable them to hold us to account. I am already confident that we would not get a rating like that again in records management, just based on the year’s review we have had from the ICO about where we have got to.

[Rebecca Long Bailey]

Q Similarly, now that you have authority over all forces across the UK, I have the same question regarding each of them: are you content that they are equipped and resourced adequately to meet data protection requirements, given that there is such an expansion?

Aimee Reed: I wish I had authority across them. I represent—that is a better way of describing what I do. Am I confident that law enforcement in general has the right investment in this space, across all forces? No, I am not. That is what I am working hard to build with Chief Constable Jo Farrell, who leads in this area for all forces on the DDaT approach. Am I more confident that forces really getting investment in this space is necessary? Absolutely.

[Rebecca Long Bailey]

Q In terms of additional resources, are there any specific figures or requirements that you could point the Government towards at this stage?

Aimee Reed: In line with our own DDaT framework, we are working with the Home Office and other ministerial bodies on what good looks like and how much is enough. I am not sure that anybody has the answer to that question yet, but we are certainly working on it with the Home Office.

[The Chair]

Ladies, thank you very much indeed for your time this afternoon. We will let you get back to your crime fighting.

Examination of Witnesses

Andrew Pakes and Mary Towers gave evidence.

15:20

[The Chair]

We now come to our ninth panel. We welcome Andrew Pakes, who is director of communications and research at Prospect, and Mary Towers, who is the policy officer at the Trades Union Congress. We have until 3.55 for this session. I invite the witnesses to introduce themselves to the Committee for the record—ladies first.

Mary Towers: Hi, and thanks very much for inviting the TUC to give evidence today. My name is Mary Towers. I am an employment rights policy officer at the TUC, and I have been leading a project at the TUC looking at the use of AI in the employment relationship for the past couple of years.

Andrew Pakes: Hello, everyone. Thank you for inviting Prospect to give evidence today. My name is Andrew Pakes. I am one of the deputy general secretaries and the research lead for Prospect union, which represents scientific, technical and professional workers. I am also a member of the OECD’s AI expert panel, representing trade unions.

[Stephanie Peacock]

Q Good afternoon to you both; you are very welcome. My first question is to Andrew. Obviously, the nature of work has changed significantly over the past few decades, particularly in the last decade. What impact has technology, particularly the rise of automated decision making and automated performance management, had on the workplace?

Andrew Pakes: We were already seeing a huge change in the use of digital technology prior to the pandemic. The pandemic itself, not least through all the means that have kept many of us working from home, has transformed that. Our approach as a trade union is to embrace technology. We believe that our economy and the jobs our members do can be made better and more productive through the good deployment of technology to improve jobs.

We also think there is a downside to it all. Everything that needs to be risked and balanced is in that. Alongside the advance in innovation and technology that has brought benefits to the UK, we have seen a rise in the darker or less savoury side of that, which is namely the rise of surveillance software; the ability of software to follow us, including while working from home, and to micromanage us and track people; and the use of technology in performance management—the so-called people analytics or HR management, which is largely an unregulated area.

If you ask me which legislation this should sit in, I would probably say an employment-type Bill, but this is the legislation we have and the Government’s choice. We would definitely like to see checks and balances at least retained in the new legislation compared with GDPR, but maybe they should be enhanced to ensure that there is some form of social partnership and that working people have a say over how technology is introduced and implemented in their workspaces.

[Stephanie Peacock]

Q That makes sense. You mentioned the changes since the pandemic. How do you think those changes have impacted on the right to privacy and the right to a work-life balance? I presume that has shifted since the pandemic.

Andrew Pakes: There is increasing evidence that while technology has allowed many of us to remain connected to our workspaces—many of us can now take our work anywhere—the downside is that our work can follow us everywhere. It is about the balance of digital disconnection and the ability to switch off from work. I am probably preaching to the wrong crowd, because MPs are constantly on their phones and other technology, but many of us are able to put that away, or should do, because we are contracted workers and have a different relationship with our workplace in terms of how that balance is struck. We very much focus on wellbeing and on information and consultation, ensuring that people are aware of the information that is collected on us.

One of the troubling factors that we and the TUC have picked up is that consistently, in opinion polls and research that is done, working people do not have confidence or knowledge about what level of data is being collected and used on them. When we see the increasing power of technology through AI and automated decisions, anxiety in the workplace is best foiled by transparency, in the first place, and, we would obviously argue, a level of social partnership and negotiation over how technology is introduced.

[Stephanie Peacock]

Q What effect do you believe the new rules in the Bill on automated decision making will have on workers? I think you have alluded to this, but would you like to see greater protections in place?

Andrew Pakes: Absolutely. What strikes me about the legislation you are considering is that just about all our major competitors—who are more productive and more advanced, often in innovation, including the United States—are choosing a path of greater scrutiny and accountability for AI and automated decision making. There is a concern that in this legislation we are taking an alternative path that makes us stand out in the international economy, which is about diluting existing protections we have within GDPR to a lower level. That raises concerns.

We have particular concerns about automated technology, but also about the clauses on the reduction of powers around data protection impact assessments. We think the risk is that the legislation could open the back door to the increase in dodgy surveillance and other forms of software coming into the UK market. I am worried about that for two reasons: first, because of the impact it has on individual workers and what is happening there; and secondly, because most of this technology—we have been part of a project that has tracked over 500 different surveillance software products currently on the international market—is designed largely for a US or Chinese market, with little knowledge of how it is being done.

What we know through ensuring consultation on the existing DPIA arrangements is that there is a break in the current rules that enables or ensures that employers have a consultation and check where their products are taking their data from and what they have stored. Diluting that risks ensuring that we are not sure where that data is being used and we are not sure of the power of this technology, and working people then end up with a worse deal than they currently have.

[Stephanie Peacock]

Q I have a couple of questions for Mary Towers. Do you think that the changes in the Bill will do anything to improve the collective rights of workers? If not, what sort of mechanisms would you like to see in place to give workers a method of redress collectively?

Mary Towers: On the contrary, we would say that the Bill in fact reduces the collective rights of workers, particularly in relation to data protection impact assessments. As Andrew has mentioned, at the moment the right to a data protection impact assessment involves an obligation on an employer to consult with workers or their representatives. That is an absolutely key tool for trade unions to ensure that worker voice is represented in the path of the introduction of new technologies at work. Also, at the moment, missing from the Bill is the ability of trade unions to act as representatives for data subjects in a collective way. We say that that, too, is missing, could be added and would be an important role that unions could take on.

Another aspect missing from the Bill, which we say is a hugely missed opportunity, is a potential right that workers could have to have an equal right to their data that matches the right employers have over worker data. Once workers had that right, they could then collectivise their own data, which would enable them, for example, to pick up on any discriminatory patterns at work or pick up any problems with equal pay or the gender pay gap. We say that that right to collectivise data and redress the imbalance of power over data at work is really important.

The Bill misses entirely the opportunity to introduce those kinds of concepts, which are actually vital in the modern workplace, where data is everything. Data is about control; data is about influence; data is the route that workers have to establish fair conditions at work. Without that influence and control, there is a risk that only one set of interests is represented through the use of technology at work, and that technology at work, rather than being used to improve the world of work, is used to intensify work to an unsustainable level.

[Stephanie Peacock]

Q In that answer, you highlighted the imbalance between employers and workers. Correct me if I am wrong, but you said that data protection impact assessments are particularly valuable to both trade unions and the collective workforce. Do you have any specific examples of this consultation tool being used successfully?

Mary Towers: Yes. This is something that Andrew’s union, Prospect, has been really active in. It has produced some absolutely brilliant guidance that looks in detail at the importance of the process of data protection impact assessments and rolled out training for its trade union reps. Again, several of our other affiliates have undertaken that really important work, which is then being rolled out into the workplace to enable reps to make good use of that process.

I will, however, add the caveat that I understand from our affiliates that there is a very low level of awareness among employers about that obligation, about the importance of that process and about exactly what it involves. So a really important piece of awareness-raising work needs to be done there. We say it is vital to build on the existing rights in the UK GDPR, not dilute or remove them.

[Stephanie Peacock]

Q What impact would the Bill have on workers by taking away this tool or watering down the DPIAs into assessments of high risk, especially given that earlier today, before this Committee, the Information Commissioner himself raised concerns about the lack of clarity on what will count as high-risk processing? That question is to either of you, briefly. I have one more and then I will let someone else come in.

Andrew Pakes: We would assert that under the law of GDPR, high risk in the legislation is, I think, in recital 39. I will correct that if I picked the wrong one. It talks about high risk as being decisions that can make material or non-material impact on people. If we now have software and algorithms or automated decisions that can hire and fire us—we have examples of that—and can decide who deserves a promotion or who can be disciplined, if that information can now be used to track individuals and decide whether someone is a good or bad worker, we would assert that that is a high risk. Anything that can actually affect both your standing in your workspace or your contractual relationship, which is essentially what employment is, or which has an impact on the trust and confidence the employer has in you and, equally, your trust and confidence back in the employer, that is a very clear definition of high risk.

What is important about the existing UK GDPR is that it recognises the nature of high risk but, secondarily, it recognises that data subjects themselves must be consulted and involved either directly or, where that is not practicable, through their representatives. Our worry is that the legislation that is tabled now dilutes that and opens up risk to bad practice.

[Stephanie Peacock]

Q Thank you. This is my final question. Does the Bill offer enough detail on the new threshold for charging or refusing a subject access request that is either “vexatious or excessive” to assure workers that they will still be able to access their personal records from an employer when making a good-faith request?

Mary Towers: The right to a data subject access request—again, like the DPIAs—is an absolutely crucial tool for trade unions in terms of establishing transparency over how their data is being used. Really, it provides a route for workers and unions to get information about what is going on in the workplace, how technologies operate and how they are operating in relation to individuals. It is an vital tool for trade unions.

What we are concerned about is that the new test specified in the Bill will provide employers with very broad discretion to decide when they do not have to comply with a data subject access request. The use of the term “vexatious or excessive” is a potential barrier to providing the right to an access request and provides employers with a lot of scope to say, for example, “Well, look, you have made a request several times. Now, we are going to say no.” However, there may be perfectly valid reasons why a worker might make several data subject access requests in a row. One set of information that is revealed may then lead a worker to conclude that they need to make a different type of access request.

We say that it is really vital to preserve and protect the right for workers to access information. Transparency as a principle is something that, again, goes to really important issues. For example, if there is discriminatory operation of a technology at work, how does a worker get information about that technology and about how the algorithm is operating? Data subject access requests are a key way of doing that.

[Sir John Whittingdale]

Q May I ask a relatively simple question? Obviously your concern is the protection of workers’ rights, and safeguards against discrimination and other potential adverse consequences of technology. We will debate the provisions of the Bill in those areas in the coming weeks—I suspect at some length—but would you nevertheless accept that the overall impact of the legislation, if we get this right, will be beneficial to your members in terms of the promotion of growth and potential future job opportunities?

Andrew Pakes: “If we get this right” is doing a lot of heavy lifting there; I will leave it to Members to decide the balance. That should be the goal. There is a wonderful phrase from the Swedish trade union movement that I have cited before: “Workers should not be scared of the new machines; they should be scared of the old ones.” There are no jobs, there is no prosperity and there is no future for the kind of society that our members want Britain to be that does not involve innovation and the use of new technology.

The speed at which technology is now changing and the power of this technology compared with previous periods of economic change make us believe that there has to be a good, robust discussion about the balances of checks and balances in the process. We have seen in larger society—whether through A-level results, the Post Office or other things—that the detriment is significant on the individuals impacted if legislators get that balance wrong. I agree with the big principle and I will leave you to debate that, but we would certainly urge that checks and balances need to be balanced, not one-sided.

Mary Towers: Why does respect for fundamental rights have to be in direct conflict with growth and innovation? There is not necessarily any conflict there. Indeed, in a workplace where people are respected, have dignity at work and are working in a healthy way, that can only be beneficial for productivity and growth.

[Damian Collins]

Q I have been listening carefully to what you have been saying and it strikes me that there are two issues: the use of technology in the general workplace, and the rights of workers who work through technology to do their jobs. In the workplace itself, data gathering and analysis has always existed to some extent. If we were having this conversation in the 1960s, we would have been talking about people doing time-motion studies of people in factories to work out what efficiency looked like. Is your concern in respect of a general working environment that employers are transparent about what sort of data they gather and how they use it?

Andrew Pakes: That is the first base. The power of technology is changing so quickly, and the informal conversations we have every day with employers suggest that many of them are wrestling with the same questions that we are. If we get this legislation right, it is a win-win when it comes to the question of how we introduce technology in workspaces.

You are right to identify the changing nature of work. We would also identify people analytics, or the use of digital technology to manage people. How we get that right is about the balance: how do you do it without micromanaging, without invading privacy, without using technology to make decisions without—this is a horrible phrase, but it is essentially about accountability—humans in the loop? Good legislation in this area should promote innovation, but it should also have due regard to balancing how you manage risks and reduce harms. That is the element that we want to make sure comes through in the legislation in its final form.

[Damian Collins]

Q So you do not have an in-principle objection to the use of technology to monitor the efficiency, output and performance of employees within a working environment, but you think it needs to be based on agreed criteria—that employers need to be transparent about how they are gathering data and what they are using it for.

Andrew Pakes: Absolutely. Let me give you a quick example of one piece of technology that we have negotiated in some areas: GPS tracking. It might be old technology, compared with many things that you are looking at. We represent frontline workers who often work alone, outside, or in spaces where their work could be risky. If those people cannot answer their radio or phone, it is in the legitimate interests of all of us to see where they are, in case they have had an accident or are in a dangerous situation. We can see a purpose to that technology. In negotiation with employers, we have often said, “This is good technology for keeping people safe, but we are not happy with it being used in performance reviews.” We are not happy with people saying, “I am sorry, Mr Collins, but you seem to spend a lot of time in the same café each lunch time.”

The issue is not the technology, but its application. Technology that is used to increase safety is very good, but the risk is that it will be used to performance-manage people; employers may say, “You are not doing enough visits,” “You aren’t working fast enough,” or, “You don’t drive fast enough between jobs.” We need balance and control, as opposed to ruling out technology that can keep people safe and well.

[Damian Collins]

Q For some people, their job is done through technology. Take a gig economy worker working for a delivery company. Do you have concerns about how app developers design their systems and their relationship to the worker? For example, you may work for a company that does not pay you for your waiting time. You are not working contracted hours; you are working in the gig economy, on a “turn up and get paid” basis. The system may have been designed to favour people who are always on the app and always ready for work, even if they are not being paid for that, over people who log on only at particular times. The app developer may not be very transparent about that, because they do not want to be named and shamed for treating their workers that way. Good and bad employers would say that there are people working to different standards, but do you feel that there is still a lack of transparency in the gig economy about how different apps process and use data, and the impact that has on the day-to-day working life of the people who use those apps?

Andrew Pakes: From my perspective, yes.

Mary Towers: The TUC has red lines relating to the use of these types of technologies. One is that we simply should not have technologies at work that are not transparent and that operate in a way that people do not understand. The principle of explainability is really important to us. People need to understand when the technologies are operating, and how they operate in relation to them. On top of that, it is absolutely vital that discriminatory data processing does not take place. The example that you gave from the gig economy is potentially of a discriminatory pay calculation—of an algorithm that might be calculating different rates of pay for individuals who are carrying out exactly the same work. The algorithm is potentially replicating existing inequalities in pay that are rooted in gender or race.

[Damian Collins]

Q The issue is not different rates of pay per task, but the amount of paid work that someone might get within a period.

Mary Towers: Yes. Drivers are a good example. People drive a certain distance to pick people up or deliver items. Even when the driving time is exactly the same, people may be paid different rates, because the algorithm will have worked out how long certain groups of people are likely to wait before they accept a gig, for example. I emphasise that, in our view, those sorts of issues are not restricted to the gig economy; they spread way beyond it, into what one might consider to be the far more traditional professions. That is where our red lines are. They relate to transparency, explainability, non-discrimination and, critically, worker and union involvement at each stage of the AI value chain, including in the development of that type of app—you mentioned development. Unless the worker voice is heard at development stage, the likelihood is that worker concerns, needs and interests will not be met by the technology. It is a vital principle to us that there be involvement of workers and unions at each stage of the AI value chain—in development, application and use.

[Chi Onwurah]

Q Welcome to both of you. Apologies for my misuse of my own technology earlier.

The Minister talked about the need for growth, which has been sadly lacking in our economy for the last 13 years. Obviously, technology can make huge improvements to productivity for those in the workforce. Mr Pakes, as someone whose members are involved in technology, scientific and IT organisations, I wonder whether you would agree with this, which comes from my experience in the diffusion of technology. Is it possible to get the best from technology in an organisation or company without the people who will be using it, or the people on whom it will be used, being an active part of that diffusion of technology, and understanding and participating in its use?

Andrew Pakes: Absolutely. That has always been how productivity has improved or changed, in effect, the shop floor. If you are asking, “What problems are you using technology to solve?”, it may well be a question better asked by the people delivering the product or service than necessarily the vendor selling the software, whether that is old or new technology. I encourage the Committee to look at the strong evidence among our competitors who rate higher, in terms of productivity and innovation, than the UK, where higher levels of automation in the economy are matched by higher levels of worker participation. Unions are the most common form, but often it can be works councils or small businesses in terms of co-design and collaboration. We see that social partnership model of the doers, who identify and solve problems, being the people who do that.

We have good examples. We represent members in the nuclear sector who are involved in fusion, small modular reactors or other technology, where the employer-union relationship is critical to the UK’s intellectual property and the drive to make those successful industries. In the motor industry and other places where the UK has been successful, we can see that that sense of social partnership has been there. We have examples around using AI or the monitoring of conversations or voices. Again, I mentioned GPS tracking, but in safety-critical environments, where our members want to be kept safe, they know that technology can help them. Having that conversation between the workforce and the employer can come up with a solution that is not only good for our members, because they stay safe and understand what the safety regime is, but good for the employer, because days are not lost through illness or accidents. For me, that sense of using legislation like this to underpin good work conversations in the data setting is what the mission of this Bill should be about.

[Chi Onwurah]

Q In terms of data sharing, should there be provisions in the Bill to ensure that workers can give free and informed consent to the sharing of their data, or will the asymmetry of the relationship in the employment contract make that challenging?

Andrew Pakes: We think there should be a higher bar, because of the contractual nature. Whether it is self-employed workers contracting for a piece of work or an employment relationship, there is a fundamental difference in our view between my individual choice to go online and enter my data into a shop, because I want to be kept appraised of when the latest product is coming out—it is my free choice to do that—and my being able to consent in an employment relationship about how my data is used. As Mary said, the foundation stone has to be transparency on information in the first place. Beyond that, there should be negotiation to understand how that data is used.

The critical point for us is that most companies in the UK are not of a size where they will be developing their own AI products—very few will be; we can probably name a couple of them. Most companies using automated decisions or AI will be purchasing that from a global marketplace. We hope many of them will be within certain settings, but we know that the leaders in this tend to be the Chinese market and the US market, where they have different standards and a range of other things. Ensuring that we have UK legislation that protects that level of consent and that redresses that power balance between workers and employers is a critical foundation to ensuring that we get this right at an enterprise level.

[Chi Onwurah]

Q Have you identified any provisions to achieve that in the Bill as it stands?

Andrew Pakes: We would like to see more. We are worried that the current legislation, because of things such as DPIAs, drops that level of standards, which means that the UK could end up trading on a lower standard than other countries, and that worries us.

Mary Towers: We are also concerned about the change to the test for international data transfers, which might make the requirements less restrictive. There is a change from adequacy to a more risk-based assessment process in terms of international data transfers. Again, we have very similar concerns to Andrew about the use of technologies rooted in international companies and the inevitable international transfers of data, and workers essentially losing control over and knowledge of what is happening with their data beyond the workplace.

In addition, I would also like to make a point about the importance of transparency of source code, and the importance of ensuring that international trade deals do not restrict that transparency, meaning that workers cannot access information about source code once data and AI-powered tools are rooted in other countries.

[Mark Eastwood]

Q I would like to declare, again, that I am a member of Prospect, and therefore I have a bit of skin in the game on this one. You mentioned GPS and surveillance technology. Very quickly, could you give me an idea of the current scale of that? Are the majority of employers going down this route? If this Bill is pushed through, could you give me an idea of how usage could increase or decrease, depending on how you see the outcome of the Bill?

Mary Towers: I will give my statistics very quickly. Our polling revealed that approximately 60% of workers perceived that some form of monitoring was taking place in their workplace. The CEO of IBM told Bloomberg last week that 30% of non-customer facing roles, including HR functions, could be replaced by AI and automation in the next five years.

A recent report from the European Commission’s Joint Research Centre—the “Science for Policy” report on the platformatisation of work—found that 20% of German people and 35% of Spanish people are subject to algorithmic management systems at the moment. Although that is obviously not UK-based, it gives you a very recent insight on the extent of algorithmic management across Europe.

Andrew Pakes: And that matches our data. Around a third of our members say that they are subject to some form of digital monitoring or tracking. That has grown, particularly with the rise of hybrid and flexible working, which we are in favour of. This is a problem we wish to solve, rather than something to stop, in terms of getting it right.

Over the past two years, we have increasingly seen people being performance managed or disciplined based on data collected from them, whether that is from checking in and out of buildings, their use of emails, or not being in the right place based on tracking software. None of the balances we want should restrict the legitimate right of managers to manage, but there needs to be a balance within that. We know that using this software incorrectly can micromanage people in a way that is bad for their wellbeing.

The big international example, which I will give very quickly, is that if you look at a product like Microsoft—a global product—employers will buy it. My work computer has Office 365 on it. Employers get it on day one. The trouble with these big products is that, over time, they add new products and services. There was an example where Microsoft did bring in a productivity score, which could tell managers how productive and busy their teams were. They rowed back on that, but we know that with these big, global software projects—this is the point of DPIAs—it is not just a matter of consultation on day one.

The importance of DPIAs is that they stipulate that there must be regular reviews, because we know that the power of this technology transforms quickly. The danger is that we make life miserable for people who are good, productive workers and cause more problems for employers. It would be better for all of us to solve it through good legislation than to arm up the lawyers and solve it through the courts.

[The Chair]

I am afraid that we are subject to chronological monitoring, so we must bring this session to an end. I thank our two representatives very much indeed for their evidence this afternoon; we are grateful for your time. We will now move on to our 10th panel.

Examination of Witnesses

Alexandra Sinclair, Ms Laura Irvine and Jacob Smith gave evidence.

15:54

[The Chair]

Welcome to the witnesses in our 10th panel. Thank you for your time this afternoon. We will hear from Alexandra Sinclair, a research fellow at the Public Law Project; Laura Irvine, via Zoom, the convener of the privacy law sub-committee at the Law Society of Scotland; and Jacob Smith, the UK accountability team leader at Rights and Security International. We have until 4.25 pm for this session. Would the witnesses please be kind enough to introduce themselves to the Committee for the record, starting with those in the room?

Alexandra Sinclair: Thank you to the Committee for inviting me. My name is Alexandra Sinclair and I am a research fellow at the Public Law Project. The Public Law Project is an access to justice charity. We help people to seek redress for unfair or unlawful decisions made by public authorities. I am also a doctoral researcher at the London School of Economics where my research focuses on automated decision making.

Jacob Smith: My name is Jacob Smith. I am the UK accountability team leader at Rights and Security International, a London-based charity aimed at the intersection between national security and human rights, which tries to ensure that when Governments take pledges in the name of national security, they comply with human rights. I am also an associate lecturer in international law, privacy and data governance at the University of Surrey.

Ms Irvine: I am Laura Irvine. I am the convener of the privacy law sub-committee at the Law Society of Scotland. My day job is head of regulatory law at Davidson Chalmers Stewart—a Scotland-based law firm. I have been working in the field of data protection law for the past 10 years, so pre-GDPR and obviously, more recently, in a post-GDPR world.

[The Chair]

Thank you. You are all very welcome.

[Stephanie Peacock]

Q My first question is to Alexandra. What would the benefit be to the general public of the Government being transparent about their use of algorithms?

Alexandra Sinclair: Thank you for the question. In order for the public to have trust and buy-in to these systems overall, so that they can benefit from them, they have to believe that their data is being used fairly and lawfully. That requires knowing which criteria are being used when making a decision, whether those criteria are relevant, and whether they are discriminatory or not. The first step to accountability is always transparency. You can know a decision is fair or lawful only if you know how the decision was made in the first place.

[Stephanie Peacock]

Q That is great. Could you tell us about your TAG transparency register and what it revealed about the level of transparency in Government algorithmic use?

Alexandra Sinclair: Currently the Government have their algorithmic reporting transparency standard—I think I have got that right; they keep changing the acronym. Currently on that system there are about six reports of the use of automated decision-making technology in government. The Public Law Project decided to create a parallel register of the evidence that we could find for automated decision making in government. Our register includes over 40 systems in use right now that involve partly automated decisions about people. It would be great if the Government themselves were providing that information.

[Stephanie Peacock]

Q In the consultation, the Government said:

“There are clear benefits to organisations, individuals and society in explaining algorithmic decision-making”

in the public sector. Do you think that measures in the Bill achieve that? Do they unlock benefits and explain the Government’s algorithmic decision making to the public?

Alexandra Sinclair: No, and I think they do not do that for three reasons, if I have the time to get into this. The changes to subject access requests, to data protection impact assessments and to the prohibition on article 22 are the key issues that we see. The reason why we are particularly worried about subject access requests and data protection impact assessments is that they are the transparency provisions. They are how you find out information about what is happening. A subject access request is how you realise any other right in the Bill. You can only figure out if an error has been made about your data, or object to your data, if you know how your data is being used in the first place.

What we are worried about with the Bill is that you currently have an almost presumptive right to your data under a subject access request, but the change in the Bill changes the standard from the current “manifestly unfounded or excessive” to “vexatious or excessive”. It also gives a whole load of factors that data controllers are now allowed to take into account when declining your request for your own data. Furthermore, under the proposal in the Bill they do not have to give you the reason why they declined your request for the data. We think that is really problematic for individuals. You have got this information asymmetry there, and it is going to be really difficult for you to prove that your request was not vexatious or excessive if you do not even know why it was denied in the first place.

If we think about some examples that we have been talking about in Committee today, in a lot of the Uber and Ola-led litigation, where individuals were able to show that their employment rights had been unfairly treated, they were able to find out about that through subject access requests. Another example is the London Met police’s gangs matrix. The Information Commissioner’s Office did a review of that matrix and found that the system did not even clearly distinguish between victims and perpetrators of crime, and the only way for individuals to access the matrix and check if the information held on them is accurate is through a subject access request. That is our first concern with the Bill.

Our second concern is the changes to data protection impact assessments. The first thing to note is that they already have to apply only in high-risk processing situations, so we do not think that they are an undue or onerous burden on data controllers because they are already confined in their scope. What a data protection impact assessment does—this is what we think is beneficial about it—is not to be a brake on processing, but to force data controllers to think though the consequences of processing operations. It asks data controllers to think, “Where is that data coming from? What is the data source? Where is that data being trained? For what purpose is that data being used?” The new proposal under the Bill for data protection impact assessments significantly waters down those obligations and means that, essentially, the only requirement is accounting for the purposes for the data. So instead of explaining how the data is being used, you are only requiring that purpose.

We think that has two problems. First, data controllers will not be thinking through all the harms and consequences before they deploy a system. Secondly, if individuals affected by those systems want to get information about how their data was processed and what happened, there will be a lot less information on that impact assessment for them to assess the lawfulness of that processing.

My final critique of the Bill is this. We would say that the UK is world-leading in terms of article 22—other states are certainly looking to the UK—and it is a strange time to be looking to roll back protections. I do not know if Committee members have heard about how Australia recently experienced the Robodebt scandal, on which there is a royal commission at the moment. In that case, the system was a solely automated debt discrepancy system that ended up making over 500,000 incorrect decisions, telling people that they had committed benefit fraud when they had not. Australia is having to pay millions of dollars in compensation to those individuals and to deal with the human cost of that decision. The conversation in Australia right now is, “Maybe we should have article 22. Maybe this wouldn’t have happened if we had had a prohibition on solely automated decision making.” When other states are looking to beef up their AI protections, we need to think carefully about looking to roll them back.

[Stephanie Peacock]

Q Thank you for that really comprehensive answer.

Jacob, what measures do you think should be in place to ensure that data protection legislation balances the need to protect national security with the need to uphold human rights? Does the Bill strike the right balance?

Jacob Smith: Thanks for the question. To take the second part first, we argue that the Bill does not strike the right balance between protecting national security and upholding data and privacy rights. We have three main concerns with how the Bill sets out that balance at the moment, and they come from clauses 24 to 26.

We have this altered regime of national security certificates for when law enforcement is taking measures in the name of national security, and we have this new regime of derogation notices. When law enforcement and the security services are collaborating, the notices allow the law enforcement body working in that collaboration to benefit from the more relaxed rules that are generally only for the intelligence services.

From our perspective, there are three main concerns. First, we are not quite sure why these amendments are necessary. Under human rights law, for an interference with somebody’s data or privacy rights to be lawful, it needs to be necessary, and that is quite a high standard. It is not something akin to it being more convenient for us to have access to this data, or more efficient for us to have access to this data; it has to meet a high standard of strict necessity. Looking through the Second Reading debate, the impact assessment and the European convention on human rights analysis, there is no reference to anything that would be akin to necessity. It is all, “It would be easier for law enforcement to have these extra powers. It would be easier if law enforcement were potentially able to use people’s personal data in more ways than they are at the moment.” But that is not the necessity standard.

The second concern is the lack of safeguards in the Bill. Another thing that human rights law—particularly article 8 of the ECHR—focuses on is the necessity of introducing additional safeguards to prevent the misuse of legislation that allows public bodies to interfere with people’s privacy rights. At the moment, as the Bill sets out, we have very weak safeguards when both national security certificates and designation notices are in place. At the moment, there is an opportunity, at least on the face of the Bill, for both those measures to be challenged before the courts. However, the issue here is that the Secretary of State has almost a monopoly over deciding whether those notices and certificates get published. So yes, although on the face of the Bill an individual may be able to challenge a national security certificate or a designation notice that has impacted them in some way, in practice they will not be able to do that if they do not know that it exists.

Finally, one encompassing issue is the expansive powers for the Secretary of State. One thing that we advocate is increased independent oversight. In the Bill, the Secretary of State has an extremely broad role in authorising law enforcement bodies to process personal data in a way that would otherwise be unlawful and go further than the existing regimes under the Data Protection Act 2018. Those are our three broad concerns in that regard. Ultimately, we do not see that the right balance has been made.

[Stephanie Peacock]

Q My final question is to all the witnesses. What are your views on the reforms to the ICO and their potential impact on its independence from Government?

Ms Irvine: We have concerns about the proposed changes and their potential impact on the independence of the Information Commissioner. I was able to listen to John Edwards speaking this morning, and I noted that he did not share those concerns, which I find surprising. The ICO is tasked with producing statutory codes of conduct, which are incredibly useful for my clients and for anyone working in this sector. The fact that the Secretary of State can, in effect, overrule these is concerning, and it must be seen as a limit on the Information Commissioner’s independence.

That leads to a concern that we have in relation to the adequacy decision that is in place between the EU and the United Kingdom. Article 52 of the GDPR states very clearly that a supervisory authority must have clear independence. The provisions relating to the independence of the Commission—the potential interference of the Secretary of State in law is enough to undermine independence—are therefore of concern to us.

Alexandra Sinclair: We would just say that it is not typical for an independent regulator to have its strategic objectives set by a Minister, and for a Minister to set those priorities without necessarily consulting. We consider that the ICO, as subject matter experts, are probably best placed to do that.

Jacob Smith: From our perspective, the only thing to add is that one way to improve the clauses on national security certificates and designation notices would be to give the ICO an increased role in oversight and monitoring, for instance. Obviously, if there are concerns about its independence, we would want to consider other mechanisms.

[Carol Monaghan (Glasgow North West) (SNP)]

Q Laura Irvine, in your briefing about the Bill you raised concerns about some of the language. We had some discussion this morning about the language and particular terms, such as what “vexatious” means, for example. Could you elaborate on your concerns?

Ms Irvine: Certainly. There are terms that have been used in data protection law since the 1984 Act. They were used again in the 1998 Act, echoed under the GDPR and included in all the guidance that has come from the Information Commissioner’s Office over the past number of years. In addition to that, there is case law that has interpreted many of those terms. Some of the proposed changes in the Bill introduce unexpected and unusual terms that will require interpretation. Even then, once we have guidance from the Information Commissioner, that guidance is sometimes not as helpful as interpretation by tribunals and courts, which is pretty sparse in this sector. The number of cases coming through the courts is limited—albeit that there is a lot more activity in the sector than there used to be. It simply presents a lot more questions and uncertainty in certain ways.

For my business clients, that is a great difficulty, and I certainly spend a lot of time advising clients on how I believe a matter—a phrase—will be interpreted, because I have knowledge of how data protection law works in general. That is based on my experience of the power of businesses and organisations, particularly in the third sector. Smaller bodies will often be challenged by a lack of knowledge and expertise, and that is a difficulty of introducing in legislation brand-new terms that are not familiar to practitioners, far less the organisations asked to implement the changes.

[Carol Monaghan]

Q You also raised concerns about automated decision making. Again, we have heard quite a lot about that today. You talked about a case on automated decision making, with regard to benefit awards being made by local authorities. Can you tell us a bit about that and where the danger might lie here?

Ms Irvine: I expect that you have heard a lot of warnings about safety. I echo what Alexandra said earlier about the removal of the right not to have automated decisions taken by organisations. That is something that we were concerned to see in a society where this is happening more and more. The particular example that we gave came from a study that had been carried out by the Equality and Human Rights Commission. That was looking particularly at decision making in local authorities; at how AI or algorithms were being used to take decisions without enough transparency; and at whether this gave the individuals the right to challenge those decisions, which stems from the transparency that is built in. The challenge for any organisation using any automated decision making—particularly in the public sector, I would submit, where the impact can be extremely significant, particularly if we are talking about benefits—is making sure these organisations understand what the technology is doing, explaining that to individuals and giving them the right to object.

The changes in the Bill relax the restrictions on automated decision making and allow that to happen almost as a default, with safeguards as an add-on, whereas article 22 as currently drafted provides a right not to have automated decisions taken about an individual unless certain circumstances apply. To echo what Alexandra said, when more and more decisions are being made automatically without a human intervening, and certainly without a human intervening at the appropriate stage to prevent damage or harm to individuals, it would absolutely seem like the wrong time to make these changes and relaxations to the regime.

[Carol Monaghan]

Thank you.

[The Chair]

You have all been superstars in our 10th panel. Thank you very much indeed for the evidence you have given this afternoon. We will now move on to the next panel.

Examination of Witness

Alex Lawrence-Archer gave evidence.

16:24

[The Chair]

We now come to our 11th and final panel. We are pleased to welcome Alex Lawrence-Archer, who is a solicitor for AWO. We have until 4.40 pm for this session. Alex, will you please introduce yourself to the Committee for the record?

Alex Lawrence-Archer: Hi, I am Alex Lawrence-Archer. I am a solicitor and I litigate data rights cases at AWO. We were also instructed by Reset to help it to formulate its written evidence to the Committee, which hopefully you have received in the last couple of days.

[The Chair]

Thank you and welcome.

[Stephanie Peacock]

Q What are the main implications of the Bill for people’s personal data rights?

Alex Lawrence-Archer: There is a group of changes in the Bill that, perhaps in ways that were unintended or at least not fully thought through, quite seriously undermine the protection of individuals’ privacy and data rights. A few of the most concerning ones are the change to the definition of personal data, recognising legitimate interests, purpose limitation, changes to the test for the exercise of data subject rights—I could go on. You will have heard about many of those today. It amounts to an undermining of data rights that seems not to be in proportion to the relatively modest gains in terms of reduction in bureaucracy on the part of data controllers.

[Stephanie Peacock]

Q Following on from that answer, what do you think the impact will be of the new definition of personal data as contained in the Bill?

Alex Lawrence-Archer: It is quite difficult to predict, because it is complicated, but it is foundational to the regime of data protection. One of the issues is that in seeking to relieve data controllers of certain bureaucratic requirements, we are tinkering with these really foundational concepts such as lawful basis and the definition of personal data.

Two things could happen, I think. Some quite bad-faith arguments could be run to take quite a lot of processing outside the scope of the data protection regime. Although I doubt that those arguments would succeed, there is an additional issue; it is quite complicated to explain, but I will try. If it is unlikely but possible that an individual might be re-identified from a pseudonymised dataset—it could happen if there were a hack, say, but it is unlikely—that processing under the new regime would not, as the Bill is drafted, benefit from the protection of the regime. It would not be considered personal data, as it would not be likely that the individual could be identified from that dataset. That is a real problem because pseudonymised datasets are very common with large datasets. There are real risks there that would not be dealt with.

[Stephanie Peacock]

Q On average, how long does it currently take for data subjects to resolve basic data rights breaches?

Alex Lawrence-Archer: Under the current regime, that is a bit like asking, “How long is a piece of string?” It can take quite a long time. There are certain practices that the ICO follows in terms of requiring individuals to complain to the controller first. Some controllers are good; some are quick, but some are not. You might have a lot of back and forth about data access at the beginning, but other controllers might hand over your data really quickly. However, you could be looking at anything up to, say, 10 to 12 months.

[Stephanie Peacock]

Q Do you think that any changes in the Bill, for example those surrounding subject access requests, would increase that time?

Alex Lawrence-Archer: Yes. You have heard from lots of people about the changes to the standard to be applied when any of the rights in chapter 3 are exercised by a data subject, and that includes the right of access. I think it is very likely that many more exercises of the right of access will be refused, at least initially. I think there will be many more complaints about the right of access and there is likely to be satellite litigation about those complaints as well, because you cannot proceed in finding out what has gone on with your data and rectify a problem unless you have access to the copies of it.

So, what you might find in many cases is a two-stage process whereby, first, you must resolve a complaint, maybe even a court case, about your right to access the data and then, and only then, can you figure out what has actually been going on with it and resolve the underlying unlawfulness in the processing. Effectively, therefore, it is a doubling of the process for the individual.

[Stephanie Peacock]

Q A final question: do you think that the definitions of “vexatious” and “excessive” are clear enough not to be abused by controllers who simply do not want to carry out subject access requests?

Alex Lawrence-Archer: The new definitions, particularly the list of factors to be taken into consideration in determining whether the test is met, provide a lot of breathing room for controllers, whether or not they have good intentions, to make arguments that they do not need to comply with the right of access. If you are looking not to comply or if you have an incentive not to, as many controllers do, that does not necessarily mean that you are acting in bad faith; you might just not want to hand over the data and think that you are entitled not to do so. If you are looking not to comply, you will look at the Act and see lots of hooks that you can hang arguments on. Ultimately, that will come back to individuals who are just trying to exercise their rights and who will be engaged in big arguments with big companies and their lawyers.

[Damian Collins]

Q The age-appropriate design code for children was mentioned in our session this morning. Do you have any thoughts on what the Bill could mean for the application of that design code, which was obviously prepared for an environment in which GDPR was enshrined in UK data law?

Alex Lawrence-Archer: The age-appropriate design code was a real success for the UK in terms of its regulation and its reputation internationally. It clarified the rights that children have in relation to the processing of their personal data. However, those rights are only helpful if you know what is happening to your personal data, and if and when you find out that you can exercise your rights in relation to that processing.

As I have said, what the Bill does—again, perhaps inadvertently—is undermine in a whole host of ways your ability to know what is happening with your personal data and to do something about it when you find out that things have gone wrong. It seems to me that on the back of a notable success in relation to the AADC, we are now, with this Bill, moving in rather a different direction in terms of that argument for protection of personal data.

Looking at the even longer term, there will be some slightly more nuanced changes if and when the AADC comes to be amended or redrafted, because of the role of the ICO and the factors that it has to take into account in its independence, which again you have already heard about. So you could, in the long term, see a new version of the AADC that is more business-friendly, potentially, because of this Bill.

[Damian Collins]

Q In terms of access to personal data, a lot of what we are talking about, certainly when we are talking about children, relates to what we generally call big-tech companies. A lot of the age-appropriate design code is focused on children’s interface with services like Instagram, YouTube, TikTok and so on, of which they are heavy users. Are you concerned that because data may be stored in such a way that it is difficult for an external person to locate to an individual user, companies may use that as an excuse to be much looser in their application of the protections for children?

Alex Lawrence-Archer: There are a bunch of different ways in which companies will take advantage of the new grey areas that the Bill opens up to carry out processing with less transparency and less respecting of the rights of the people whose data they are processing. If we take just the definition of research, for example, it will be much easier to carry out research for a large platform that already has lots of personal data. The GDPR already provides for a lot of exemptions when you are carrying out research; the Bill dramatically expands that definition. If you are a Google or a YouTube, then yes, you are much freer to carry out processing that you consider to be research without necessarily being transparent about it to the users affected, those whose data it concerns.

[Damian Collins]

Q The project that triggered the initial Cambridge Analytica scandal was in theory academic research on personality profiling, so there are lots of ways in which the definition can be stretched, for sure. Earlier, I asked the Information Commissioner about the definition of legitimate interests for companies. He seemed to think that if he thought that someone did not have a legitimate interest, he could still investigate it and therefore the Bill did not make much difference, but are you reassured by what he said?

Alex Lawrence-Archer: We need to distinguish between two things: one is the introduction of some examples of what may be legitimate interests, which is not a particular concern because they replicate what is already in a recital; and, separately and of much greater concern, the introduction of recognised legitimate interests. I think that that is quite a radical departure from legitimate interests under the current regime. The Bill possibly misguides people, because it uses the language of legitimate interests, but it works in a very different way.

If you have a legitimate interest under the current regime, you must balance your interests against those of data subjects, and that is not something that is required if you can rely on a recognised legitimate interest under the new regime. The recognised legitimate interests are very broad—prevention of crime, for example, does not mean that that has to be done by the police. That is about opening up such processing for any kind of controller, which could be your neighbour or local corner shop, who can rely on that recognised legitimate interest with no requirement to consider the data subject’s interest at all. That is a radical departure, because the concept of balancing the interests of the data subject and of the controller is absolutely fundamental to our current regime.

[Damian Collins]

Q In that case, on recognised legitimate interests, if someone says that their legitimate interest is the prevention of crime, they can define that in any way that they like in how they might seek to process or analyse behaviour patterns in their systems?

Alex Lawrence-Archer: I do not want to overstate the case. You must be able to demonstrate that the processing is necessary for a recognised legitimate interest; it has got to make sense—but you do not have to consider anyone else’s interests.

For example, in some recent cases, neighbours were operating CCTV that captured lots of the personal data of their neighbours. An important argument to show that that was unlawful was that yes, the processing was necessary for the detection of crime—that is what the CCTV was for—but the interests of the neighbours, views of whose gardens and front windows were being captured, overrode the legitimate interests of the controller. That is how it works under the current regime. Under the new regime, you would not have to consider the interests of the neighbours in the use of that CCTV system. You would be able to rely on the recognised legitimate interest.

[Damian Collins]

Q Effectively, you would not need to consider whether the use of that technology in that case was disproportionate to the risk.

Alex Lawrence-Archer: Yes.

[Chi Onwurah]

Q We heard from some witnesses today that greater ease of access to data will increase competition for those such as Google and Meta that have large amounts of data as it is. What do you think the impact of this Bill will be for big tech?

Alex Lawrence-Archer: I think the Bill is quite big tech-friendly, and the way that it deals with research is well illustrative of that. One of the objectives of the Bill is obviously to boost the use of personal data for academic research, which is a really laudable objective. However, the main change—in fact the only change I can think of off the top of my head—that it makes is to broaden the definition of academic research. That helps people who already have lots of personal data they might do research with; it does not help you if you do not have personal data. That is one of the major barriers for academics at the moment: they cannot get access to the data they need.

The Bill does nothing to incentivise or compel data controllers such as online platforms to actually share data and get it moving around the system for the purposes of academic research. This is in stark contrast to the approach being taken elsewhere. It is an issue the EU is starting to grapple with in a particular domain of research with article 40 of the Digital Services Act. There is a sense that we are falling behind a little bit on that key barrier to academic research with personal data.

[Chi Onwurah]

Q We also heard that existing cookie management and subject access requests and so on represent a real burden, particularly for smaller companies. Do you recognise that? Do you know why there is less support in technology to help small businesses deal with, if you like, the data management challenges? How is that to be traded off against the privacy rights of individuals?

Alex Lawrence-Archer: I certainly recognise that the requirements of GDPR place compliance burdens on businesses of all sizes. I am sceptical that the right balance is being struck in trying to ameliorate the burdens of the costs and challenges that ordinary people will face—in terms of knowing how they are being profiled and tracked by companies—and resolving things when they have gone wrong. I am sceptical as well that there will be major benefits to many businesses who will continue to need to do business in Europe. For that reason, we will need either to have dual compliance or simply to continue to comply with EU GDPR. You can see this benefiting the largest companies, which can start to segment their users. We have already seen that with Meta, which moved its users on to US controllership, for example. I would see that as more beneficial to those large companies, which can navigate that, rather than, say, SMEs.

[The Chair]

Mr Lawrence-Archer, thank you very much for your time this afternoon.

That brings us to the end of our 11th panel. As an impartial participant in these proceedings—we have had over four-and-a-half hours of evidence with 23 witnesses —I would say it has been an absolute masterclass in all the most topical issues in data protection and digital information. Members might not realise it, but that is what we have had today.

Ordered, That further consideration be now adjourned. —(Steve Double.)

16:33

Adjourned till Tuesday 16 May at twenty-five minutes past Nine o’clock.

Written evidence reported to the House

DPDIB01 Judith Ratcliffe, Privacy Professional

DPDIB02 Dr C N M Pounder, Amberhawk Training Limited

DPDIB03 Prighter Ltd

DPDIB04 Damien Welfare

DPDIB05 Data and Marketing Association (DMA)

DPDIB06 Open Rights Group

DPDIB07 Big Brother Watch

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DPDIB09 Internet Advertising Bureau (IAB) UK

Illegal Migration Bill

2nd reading
Wednesday 10th May 2023 Lords Chamber

Second Reading

11:06

Moved by

[Lord Murray of Blidworth]

That the Bill be now read a second time.

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, the British people are generous and welcoming to those in need fleeing persecution, war and humanitarian crisis abroad. They also know that uncontrolled illegal migration makes us less safe, is unfair on taxpayers, puts lives into the hands of people smugglers and is unfair on would-be immigrants who play by the rules.

More than 45,000 people came here by small boat last year. The overwhelming majority of arrivals were adult males under the age of 40. These journeys are extremely dangerous; people have lost their lives attempting to cross one of the world’s busiest shipping lanes in flimsy boats. These journeys are also unnecessary. Those making the crossings are coming from safe countries, such as France, where they could have claimed asylum.

Our broken asylum system is costing the country some £3 billion a year, and taxpayers are now spending more than £6 million a day on hotels alone. We cannot continue, year on year, with this relentless rise in the number of illegal arrivals adding unacceptable pressures not just on our capacity to house new arrivals but on our ability to provide health, educational, children’s and welfare services.

My right honourable friend the Prime Minister is right: we have to stop the boats. I welcome the fact that this objective is shared across the political spectrum. The issue before your Lordships’ House today is how best to achieve this shared objective.

There is no one single solution. We need to address this complex issue across a broad front, and the Bill needs to be seen in its wider context. The Government have already delivered: the largest-ever small boats deal with France; a new agreement with Albania; a new, unified small boats operational command; tougher immigration enforcement; new, more robust measures for identifying potential victims of modern slavery; and a plan to clear the legacy initial decision asylum backlog by the end of the year and move migrants out of expensive hotels.

But we also need new legislation to make it unambiguously clear that if you enter the UK illegally, you will not be allowed to stay here. Instead, you will be liable to be detained and will be swiftly returned, either back to your home country or to a safe third country. It is only by removing the incentive to come to the United Kingdom that we will stop people taking these dangerous journeys and deter the people smugglers from profiting off people’s suffering. This is what the Bill seeks to deliver.

Crucially, the Bill places a legal duty on the Home Secretary to make arrangements for the removal of illegal entrants who meet the four conditions set out in Clause 2. This is critical to the operation of the scheme. It will send a clear message about Parliament’s intent in enacting this legislation. Save in the very limited circumstances provided for in the Bill, it will be crystal clear to illegal migrants, the courts and the British people that the Home Secretary is legally bound to remove all those who meet the conditions set out in Clause 2 as soon as it is reasonably practical to do so.

As I have indicated, the exceptions to this duty will be limited and, in most cases, only temporary. In particular, we recognise the sensitivities in relation to unaccompanied children. That is why the Bill provides that the duty to make arrangements for removal does not apply until they reach adulthood, which in some 70% of cases is within two years of their arrival. Reflecting our current policy, the Bill confers a discretionary power to remove unaccompanied children in limited circumstances. The Bill now expressly sets out those limited circumstances in which the power to remove unaccompanied children may be exercised; that is, for the purpose of reuniting a child with a parent, where the child is to be returned to a safe country of origin or where the child has made no protection claim.

The Bill also suspends the duty to make arrangements for removal, again on a temporary basis, in the case of those persons who make a factual suspensive claim or a serious harm suspensive claim. It is vital to the effective operation of the scheme provided for in the Bill that we address head-on the cycle of repeated and late legal challenges by those seeking to frustrate the Home Secretary’s existing removal powers. The suspensive claims provided for in the Bill will be the only claims that will be heard in country and will therefore be the only route by which someone can challenge removal. Legal challenges by way of judicial review are, of course, still available, but they will not suspend removal, and Clause 4 makes this clear. These claims can continue remotely. It follows from this that the courts are not able to grant any form of interim relief that would have the effect of holding up removal pending consideration of the substantive judicial review. Clause 52 now makes this clear in the Bill.

As I have indicated, the Bill itself makes provision for two kinds of suspensive claims that provide sufficient legal remedies to those seeking to challenge their removal. Where a person seeks to challenge their removal on the basis that the Home Secretary has made a mistake of fact in deciding that they met the removal conditions, they can lodge a factual suspensive claim. Where such a claim is successful, the duty to make arrangements for removal would no longer apply, although the claimant may be subject to enforcement action under existing law if they have no legal basis to remain in the United Kingdom.

The second type of suspensive claim is a serious harm suspensive claim. Under the provisions of the Bill, a person who has made a protection or rights-based claim in respect of their home country will not be returned to that country unless it is one of the safe countries listed in new Section 80AA of the Nationality, Immigration and Asylum Act 2002 and only if there are no exceptional circumstances militating against their return. But such a person can and will be removed to a safe third country.

Serious harm suspensive claims recognise that, exceptionally, there may be a well-founded reason why a person cannot be removed to the third country specified in the removal notice. Such a claim must be based on the fact that the person would face a real, imminent and foreseeable risk of serious and irreversible harm if they were removed. This is purposefully a high bar that reflects the terms on which the European Court of Human Rights may decide to indicate interim measures under rule 39 of its rules of court. Where a serious harm suspensive claim is upheld, it would be open to the Home Secretary to remove the person to another country or to revisit their removal to the original third country following a change of circumstances—for example, should the medical condition that previously prevented removal subsequently improve.

I have already alluded to the fact that the test for serious harm suspensive claims reflects the approach taken by the Strasbourg court when deciding the grant of interim measures. I have also explained the provisions in the Bill placing limitations on the grant of interim remedies by our domestic courts. In this context, it is entirely right that we address the impact of any interim measures indicated by the Strasbourg court.

Clause 53 of the Bill provides a discretion for a Minister of the Crown to suspend the duty to remove a person where an interim measure has been indicated. That discretion must be exercised personally by a Minister. This means that the Minister may suspend removal in response to a rule 39 interim measure but is not required to as a matter of UK law. The clause provides a broad discretion for the Minister to have regard to any factors when considering whether to disapply the duty and provides a non-exhaustive list of considerations that the Minister may have regard to when considering the exercise of that discretion. As my right honourable friend the Immigration Minister indicated in the House of Commons, this Government take our international treaty obligations incredibly seriously, and I can assure noble Lords that this discretion would be exercised judiciously and on the basis of the facts of an individual case.

The Bill provides for bespoke powers of detention for the purpose of the scheme. It is vital that we have the power to detain to establish whether a person falls within the scheme, and pending their removal, if the Bill is to be effective both as a deterrent and as a means of ensuring that the Home Secretary can comply with the duty on her to make arrangements for removal. That said, I again acknowledge the particular vulnerability of unaccompanied children. That is why the Government have brought forward amendments to provide that unaccompanied children may be detained only in circumstances prescribed in regulations. In addition, in line with the commitment given by the Immigration Minister, later in the Bill’s passage through this House we will set out the new timescale under which children may be detained for the purposes of removal without judicial oversight.

It is a central tenet of the Bill that a person who satisfies the conditions in Clause 2 will not have their asylum, human rights or modern slavery claims considered in the United Kingdom. It is a sad but incontrovertible fact that our modern slavery protections are susceptible to abuse by illegal migrants seeking to frustrate their removal from the United Kingdom. Whereas in 2019 just 6% of people arriving in the UK on a small boat and detained for return involved a modern slavery referral, the figure in 2021 was 73%.

The Bill therefore applies the public order disqualification, as provided for in the Council of Europe convention against trafficking, to those who meet the conditions in Clause 2. This means that they will not benefit from the protections otherwise afforded to potential victims of modern slavery. The Bill provides for an exception where a person’s presence in the UK is necessary for the purposes of their co-operation with a law enforcement agency in the investigation of an offence linked to their exploitation.

We recognise that the application of the public order disqualification to this cohort is a significant step and justified only during such time as the exceptional circumstances relating to the illegal entry into the UK, including arising from the channel crossings in small boats, continue to apply. For this reason, the modern slavery provisions are subject to a sunsetting clause such that, unless renewed by affirmative regulations agreed by both Houses, they will cease to apply after two years.

As I have set out, the whole point of the Bill is deterrence. As well as being clear that illegal entry into the UK may simply result in your detention and swift removal, the Bill underlines that you will have no ability to build a life in the UK. Save in very limited circumstances, Clauses 29 to 36 provide that a person will have no right to secure settlement, acquire British citizenship or, once removed, lawfully re-enter the UK.

Finally, I return to the theme I began with. Ours is a welcoming, compassionate and generous nation. We have offered our homes and communities to nearly half a million people seeking protection since 2015. We have safe and legal routes available to people from any country in the world, such as the refugee family reunion scheme and the UK resettlement scheme, as well as in recent years country-specific routes for people from Syria, Hong Kong, Afghanistan and Ukraine. We stand ready to do more. But our ability to do more must be directly linked to our capacity to house and support new arrivals.

We recognise the calls for early progress on this front, so within three months of Royal Assent we will begin the consultation with local authorities and communities themselves to understand their capacity to accommodate and support persons to be admitted to the UK each year through safe and legal routes. Within six months of Royal Assent we will set out, in a report to be laid before Parliament, the existing and proposed additional safe and legal routes. We will seek to open the proposed new routes as soon as practicable and, in any event, by the end of 2024.

We simply cannot continue with a situation whereby, year on year, tens of thousands of people make the dangerous, illegal and unnecessary journey across the channel in circumvention of our immigration controls. Illegal migration is not fair and not right. It is not fair on the British communities whose public services and housing are under pressure. It is not fair on those who work hard and obey the law to come to the UK through established routes. It is also not fair on the people travelling in the small boats themselves, who are placed in peril at the hands of people smugglers.

We must stop the boats. The Bill, in conjunction with the other steps the Government are taking, is a necessary, urgent and indeed compassionate response to the daily challenge posed to the integrity of our immigration system. We must act now and, on that basis, I beg to move.

11:24

Amendment to the Motion

Moved by

[Lord Paddick]

To leave out from “that” to the end and insert “the House declines to give the bill a second reading because it

(1) undermines the rule of law by failing to meet the United Kingdom’s international law commitments and by allowing Ministers to ignore the directions of judges;

(2) undermines the UK’s tradition of providing sanctuary to refugees by removing the ability of refugees to exercise their legal right to claim asylum, by removing protections afforded to modern slavery victims and by increasing the number of people in indefinite detention, including children;

(3) fails to provide safe and legal routes for refugees;

(4) fails to include measures to eliminate the backlog of asylum cases; and

(5) fails to include measures to tackle people smuggling gangs.”

[Lord Paddick (LD)]

My Lords, Trevor Phillips recently wrote in the Times that, in 2000, 175 million people lived outside the country of their birth and that, by 2020, it was 280 million. He likened the Prime Minister’s pledge to “stop the boats” to King Canute ordering back the incoming tide. He argued that we need to bring order to the flow, rather than focusing on the impossible task of locking the doors to keep asylum seekers out. We agree.

We have yawning gaps in our labour markets that refugees could fill. We believe that we should adopt the approach many other countries are adopting, that responsibility should be taken away from the Home Office and given to the Foreign Office or the Department for Business and Trade and that “Migration is no job for a home secretary”. Phillips agrees. We should be harnessing the power of the incoming tide, not refusing to accept that it cannot be stopped.

The Government talk about “pull factors”. We talk about “push” factors: the intolerable conditions in their home countries that compel asylum seekers to find sanctuary elsewhere in the world. Even in detention in the UK, you do not have to worry about where you are going to live, how you are going to survive without adequate food or water, or whether you are going to be killed or persecuted, or otherwise have your life endangered. Can the Minister say what evidence the Government have that the measures in the Bill will deter small boat crossings?

Talking of so-called “pull factors”, the Government have reduced their spending on measures designed to improve conditions in asylum seekers’ home countries from 0.7% to 0.5% of gross national income, while at the same time spending millions of pounds from the 0.5%—this so-called “overseas aid”—on housing asylum seekers in the UK. Can the Minister confirm how much less the Government are currently spending on overseas aid since the downgrade to 0.5%, and how much of the 0.5% is being spent on housing asylum seekers in the UK?

In the Times today, the Home Secretary talks about

“the clear desire of the British people to control immigration”.

The Telegraph reported yesterday—under the headline that net migration was set to hit double the pre-Brexit level—that, in the year to December 2022, 1.37 million work, study or other visas were granted by the Government to allow people to stay long term in the United Kingdom. The Home Secretary says that the number seeking asylum crossing the channel in small boats in the same period was 45,000—just over 3% of those who sought to stay in the UK last year, even if every asylum seeker was granted leave to remain. If the Government are, as they appear, subscribing to the populist view that there is “too much” immigration, can the Minister explain why they are attempting to push through legislation that seeks to deter only three in every 100 long-term arrivals, and why, since Brexit, they have increased the number of countries from which people can enter the UK without question and without a visa by 10?

The Government portray asylum seekers as an undesirable drain on society. We disagree. Let me give noble Lords an example. A young man who I know personally, who is now in Norway, had been living in Afghanistan when, at the age of three, he lost his father, killed in the Afghanistan war, and, at the age of five, his mother died of breast cancer. He was sent to his grandmother in Iran, where he worked from the age of six until he was 12. He saved enough money to begin his journey through Europe, finally arriving in Norway the day before his 16th birthday, where he was granted asylum.

He had never been to school before arriving in Norway; now, at the age of 23, he speaks fluent Norwegian and English. He works long hours in the security industry, sending £500 a month to his grandmother and two cousins in Iran. He is also on a three-year course at police college, which will result in him becoming a Norwegian police officer. He has a Norwegian passport and driving licence, he lives alone in private rented accommodation that he pays for himself and he is saving for a deposit to buy his own home, as well as paying Norwegian tax and national insurance.

Under this Bill, if that young man came to the UK in the same way, he would face compulsory X-rays to confirm that he was not an adult. Even though the Home Secretary’s duty to deport him would not apply until he was 18, the Secretary of State would still have the power to deport him while he was a child. He would most likely be detained until he was 18 and then sent to Rwanda—if anyone ever gets sent to Rwanda, and even if the capacity of Rwanda could cope with the numbers involved.

During that time, the Home Office could prevent that young man being looked after by a local authority, ignoring this country’s international obligations to act in the best interests of the child and the provisions of Part III of the Children Act. Whether the detention of asylum seekers was reasonable or not, including the potentially indefinite detention of children, pregnant women and victims of torture, would no longer be a matter for the courts but for the Home Secretary to decide.

If the European Court of Human Rights blocked that young man’s deportation by means of an interim order, the Home Secretary could ignore the judge’s ruling. UK courts would be prevented from granting an injunction, even if there were grounds for a judicial review. So much for the rule of law.

If that young man could not be sent back to where he came from, because neither Iran nor Afghanistan are listed as “safe countries” and he remained in the United Kingdom, he would never be able to work, never be given leave to remain and never be able to become a British citizen. Neither would his children, were he to have any, nor any of his family members. Estimates are that between 160,000 and 193,000 asylum seekers could be left in limbo in the United Kingdom in the first few years of the Bill’s operation—a permanent drain on the state, a subclass of society, open to labour and sexual exploitation. Can the Minister say when we will receive the Government’s own impact assessment, or will noble Lords have to rely on NGO estimates?

This young man’s story is not exceptional. There are many such examples in the UK that prove that those with the drive and determination to make such long and perilous journeys are just the sort of people who will work hard, contribute positively to society and support their families—the complete opposite to how this Government seek to portray those seeking asylum.

The Bill seeks systematically to deny human rights to a group of people desperately seeking sanctuary. It would breach our international obligations under the UN conventions on refugees, on the rights of the child and on the reduction of statelessness, and the European convention against trafficking. This is the first, but not the only, Bill that explicitly states that it does not have to be compatible with the European Convention on Human Rights. The Human Rights Act is being revoked, one law at a time. The Bill would undermine the rule of law, with Ministers able to ignore the rulings of judges. At the same time, we are asking Russia and China to abide by the international rule of law.

I have one final thought. I studied moral philosophy at university. One of the acid tests of whether something was morally right was the question: “What would happen if everyone did the same thing?” Can the Minister say what would happen if every country adopted the approach outlined in the Bill?

This Bill is a low point in the history of this Government and we should not allow it to proceed any further. I beg to move.

11:34

[Lord Coaker (Lab)]

My Lords, before I make my speech, let me make it clear that we will not support the noble Lord, Lord Paddick, in his amendment. Of course, we oppose the Bill, and did so at Second and Third Reading in the other place. We understand why the amendment has been moved and we know that it sounds attractive, but if we pursued it, all that would happen is that the Government would use the Parliament Act and no amendments in this place would then be possible. So we will propose amendments and press the Government to think again, but we recognise that the elected House passed this legislation.

I also say to the Minister and this Chamber, however, that we do not need lectures either from the Home Secretary or the Justice Secretary about the constitutional position of the Lords. We will not be rushed or intimidated into giving the Bill an easy ride. We will do all we can to do our job in seeking support across the Chamber to bring about the much-needed change.

As we begin this House’s discussion of the Bill, I declare my interest as an unpaid trustee of the Human Trafficking Foundation and my work with the University of Nottingham’s Rights Lab. It is essential, if not crucial, that we lay out again the principles on which we should base our consideration of the measures in the Bill. We can address the detail in Committee and on Report, and I shall do so a little in this speech—but what of our principles?

Of course, we face a very real challenge, with the Government having lost control of migrants crossing the channel in particular and asylum policy in general. The Bill is the latest response to a crisis whereby 138,000 asylum claims await decision and 45,700 migrants crossed the channel in 2022, with 6,415 so far this year. Since the Bill was announced, 3,265 migrants have crossed the channel—some deterrent. They come into a system in which already 38,900 people await removal. Of course there is a problem that needs fixing, but this new Bill, layering on more incompetence, complexity, unworkability and unfairness, will not do it—it will make it worse. Indeed, it comes less than a year after we were told that it would all be sorted out by the Nationality and Borders Act—that it was the solution and the way to stop the boats. The ink is hardly dry on that Act, and in blind panic, as the problem gets worse, new measures, which would have been regarded as unthinkable just a few years ago, are now to be rushed through.

In the face of increasing global migration, fuelled by regional insecurity, war and persecution, and the challenge of climate change, which can only get worse, where is the leadership that you would expect from our Government? Our Government say that the solution is to go it alone, embarrassed and humiliated, even as we look at countries—often some of the poorest in the world—taking in hundreds of thousands of refugees from conflicts on their borders. One has only to look at Sudan. Where are the leaders such as Churchill and Tory MP Maxwell Fyfe, who set up the Council of Europe when faced with the humanitarian and refugee crisis post World War II? Obviously now it is totally different, but they saw international co-operation, based on human rights, as an essential prerequisite to any solution.

This illegal migrants Bill has been condemned by the United Nations refugee commissioner, the Council of Europe, UNICEF and numerous NGOs and organisations, including faith organisations working in this area—condemned by all. And what do the Government say of us? That we are out-of-touch lefties, trendy lawyers and people who are not in touch, when we are standing up against those introducing unworkable measures that drive a stake through the heart of our international standing—something that we can be proud of.

As Amnesty says, Clause 1 means that, whatever the merits of the refugee’s asylum claim, whatever the strength of their connection to the UK and however indecent and impractical the aim of expelling them, their expulsion is to be required by the Bill, and no moral, legal or practical consideration is to obstruct that. That is shocking and appalling. Furthermore, the Bill bars anyone and any court from interfering; it says that there will be no judicial review for up to 28 days for anyone. No ability to test the legality or reasonableness of that is to be allowed under Clause 2. Under the Bill, everyone who has entered irregularly has to be detained; no matter whether you are fleeing persecution, war, or being trafficked, you will be locked up. Thousands on thousands will be locked up but the Government will not even give a number. There are approximately 2,000 places available at the moment. How many more cruise ships, military barges or camps are needed? Where are they? When will they be available? The Government have no idea or proper plans—they are clueless—and no judgment can be made, because no impact assessment is available for us to consider.

We have no idea what happens after those 28 days. All of it is predicated on returns agreements, like the one with Rwanda, which is stuck in the courts; other such agreements are completely non-existent. What do the Government do? They seek unilaterally to undermine the ECHR, even while they negotiate, by giving the Home Secretary what is effectively an opt-out from any interim measure granted under Rule 39. As Joanna Cherry MP, the acting chair of the JCHR, reminded us, we are talking about the suspension of measures such as extradition—not stopped, but suspended—while the case is properly examined. She pointed out that between 2019 and 2021, interim measures under Rule 39 were applied for in 880 cases against the UK but granted in just seven. How does that justify driving a coach and horses through international treaties that we signed and, indeed, helped to set up? As a former Attorney-General, Geoffrey Cox MP, said, the provisions in this Bill ask the House, should the Bill be approved, to allow,

“quite consciously and deliberately, a deliberate breach of our obligations under the convention”.—[Official Report, Commons, 26/4/23; col. 785.]

What of children under this Bill, particularly unaccompanied children? Last year, over 5,242 unaccompanied children sought asylum in the UK. These children will be detained, whatever the Minister says, for an uncertain period and returned if possible. Even if they are allowed to remain in the UK while a child, unaccompanied children will live in the knowledge that on their 18^th birthday they will be subject to removal, regardless of their protection needs, which will be deemed inadmissible. If this Bill becomes law, more children will go missing. Notwithstanding the Children Act, unaccompanied children have often been placed in hotels outside the care system. The result has been 4,600 children placed in Home Office-run hotels, 440 missing episodes and 200 children still not found. This Bill will make it worse. I say to the Government that, if the state was a physical parent, it would be prosecuted. Clauses 15 to 20 do all of the above and have been condemned by, among others, the Children’s Commissioner.

Clauses 21 to 28 destroy one of the Conservative Government’s greatest achievements, the legacy of Theresa May, the former Prime Minister, and our reputation as a world leader in the area of modern slavery. As the former Prime Minister said, the Bill

“will drive a coach and horses through the Modern Slavery Act”.[Official Report, Commons, 28/3/23; col. 886.]

If noble Lords have not yet done so, they should read Clause 4(1)(c). People cannot claim to be a victim of slavery or trafficking to suspend any detention or removal, which is justified and based on selective statistics. As Theresa May said,

“more people will stay enslaved”,

and the Bill will give more power to the slave drivers and traffickers, for whom it will be easy to say,

“Don’t even think about trying to escape”,

because, if you do, you will be sent away, perhaps to Rwanda. This cannot be what our country has come to. The Government have said that you do not even have to be in the UK to assist an investigation, making it harder to identify, catch and prosecute the traffickers. Most astonishingly of all, the former Prime Minister said:

“It is a slap in the face for those of us who actually care about victims of modern slavery and human trafficking”.—[Official Report, Commons, 26/4/23; cols. 808-09.]


That was a former Conservative Prime Minister speaking recently in the other place about the provisions in the Illegal Migration Bill that is before us today.

We have a Bill that gives the Home Secretary the power to remove anyone who arrives via an irregular route, with no certainty as to where, if anywhere. Such a power extends to children—the power to detain children with no legal redress for at least 28 days. It is immoral, but there is no space or places for detention. Courts can be ignored, whether domestic or international. There are no returns agreements or international co-operation and no help if you are trafficked. That is what this House is being asked to support.

A new approach is needed. There is a better way: an approach that takes on the traffickers and smugglers, sorts out the bureaucratic mess and muddle of the current system with a fast-track asylum system and seeks international agreements and co-operation. We need an approach that restores the aid budget to 0.7%, tackling more problems in the region itself, and the speedy setting up of safe and legal routes. Above all, we need an approach that is workable, practical and based on our international obligations and the conventions that we have signed.

Instead, in response to a broken system that is failing, we have a Government playing fast and loose with our place in the world and our respect for international law. This must change. We will do all that we can, particularly on Report, to change this Bill—not by blocking it but by standing up for those who look to us for sanctuary and by proposing workable, humane solutions. We will be proud to do so. We will ask the Government to think again, as is the constitutional right of the House of Lords with respect to things that come to us from the other place.

We will not be cowed by the other place as it tries to intimidate us about seeking to change the Bill. Of course we will seek to change and amend it and we will say where we think that the Government have it wrong. This House has always done that and we will not be deflected. As I said, we need a different, moral approach that works and does not make things worse. What we are seeing from this Government is even more gimmicks and we will get more of the same until we get the change that we and the country need: a change of government.

11:46

[Lord Etherton (CB)]

My Lords, I acknowledge at the outset the great assistance that I have received in discussions with Dr S Chelvan, a barrister with particular expertise and experience in immigration law.

It is important to appreciate where we are going with UK legislation on refugees. There are four resettlement schemes operated by the United Kingdom: Syria, Afghanistan, Ukraine and Hong Kong. Critically, under the Immigration Rules, there is no asylum visa route for an individual refugee to enter the United Kingdom and claim asylum. This means that, unless a person is within one of the four resettlement schemes or asylum is sought by someone already lawfully present in the United Kingdom, the refugee’s arrival in and entry to the United Kingdom will inevitably be illegal.

That means that they will fall within category 2 refugee status under the Nationality and Borders Act 2022. They will therefore be subject to accelerated and punitive procedures and, even if they fulfil the refugee definition, they will not have the benefits of settlement and nationality afforded to group 1 refugees. They would, however, be able to make a human rights claim or a protection claim, albeit under strict constraints, including very short time limits. If they have arrived after 7 March 2023, they will almost inevitably be caught by the four conditions for mandatory removal under Clause 2 of the Bill. It is obvious and must be emphasised that this is not a small boats Bill. The provisions of the Bill would affect all who seek refugee status in this country and are entitled to the protection of the 1951 convention.

In a move away from even the limited rights of category 2 refugees under the 2022 Act, the duty under Clause 2 to make arrangements for their removal is unaffected by the making of a protection claim or a human rights claim or an application for judicial review. Any protection claim or human rights claim is by statute inadmissible and carries no right of appeal.

Removal must be to one of the countries specified in Schedule 1, but the only country there specified with which the United Kingdom has an arrangement for taking such asylum seekers is Rwanda. Such asylum seekers will be detained, as provided in Clause 10, and, under Clause 11, that will be for

“such period as, in the opinion of the Secretary of State, is reasonably necessary to enable the … removal to be carried out”.

There is no statutory time limit on such detention. An asylum seeker who is subject to removal under Clause 2 has the ability to make a suspensive claim—either a serious harm suspensive claim or a factual suspensive claim—but that does not affect the legality and finality of the obligation of the Secretary of State to make arrangements for removal.

Can it get any worse for a refugee seeking asylum in the United Kingdom? It can, because even in relation to safe and legal routes—the four resettlement routes—Clause 58 says:

“The Secretary of State must make regulations specifying the maximum number of persons who may enter the United Kingdom annually using safe and legal routes”.


Even in the case of refugees from war or armed conflict, the Government have failed to provide a safe route in relation to Sudan. We appear to be witnessing the playing out of a policy continuum under which increasing barriers for refugees to the United Kingdom are being imposed with an ultimate goal of preventing all refugees save those who have already applied under the four resettlement schemes.

It is against that background that I wish to illustrate the operation of the current and proposed legislation by reference to LGBT refugees. It is well established that LGBT refugees are within the protection of the refugee convention. Not only is that the view of the UNHCR but it has been decided by our own courts at the highest level. Unless an LGBT person is already legitimately in the United Kingdom and claims refugee status while here or happens to be within one of the four resettlement schemes, they will, as I said, almost inevitably be caught by the four conditions in Clause 2, so the Secretary of State will be under a statutory duty to make arrangements for their removal. They cannot make a protection claim, a human rights claim or an application for judicial review to prevent the operation of that duty. They will be detained for as long as the Secretary of State considers “reasonably necessary” to enable the removal to take place, without any statutory time limit. None of that is affected by the ability to make a serious harm suspensive claim.

They have to be sent to one of the countries in Schedule 1. Here, however, is a difficulty. There are many countries on that list in Schedule 1 that have anti- LGBT laws or where, even if such laws are not actively enforced or there are no express laws, there exists a social environment where there is anti-LGBT persecution with impunity and a climate of fear for LGBT people. This is particularly true of those Commonwealth countries, of which there are many, where our colonial history has had the civilising consequence of bequeathing brutal anti-LGBT laws and prejudices. Such laws or prejudices exist in the following countries specified in Schedule 1: Albania, Brazil—particularly in relation to trans people—Gambia, Ghana, Hungary, Jamaica, Kenya, Liberia, Malawi, Mali, Mauritius, Nigeria, Poland, Rwanda, Sierra Leone and, in some respects, South Africa. The only country with which the United Kingdom has reached agreement is Rwanda.

[Lord Davies of Gower (Con)]

I point out to the noble and learned Lord that the speaking time is six minutes.

[Noble Lords]

Advisory.

[Lord Davies of Gower]

Advisory.

[Lord Etherton (CB)]

I am nearly at the end.

The Foreign Office travel advice includes the following:

“Homosexuality is not illegal in Rwanda but remains frowned on by many. LGBT individuals can experience discrimination and abuse, including from local authorities. There are no specific anti-discrimination laws that protect LGBT individuals”.


While the search is on for some other more appropriate safe country for LGBT refugees fleeing persecution, which may take years or may never be achieved, the refugee is detained without limit of time. What an appalling indictment of our failure to comply with our international legal obligations in breach of the rule of law and of our lack of humanity and empathy.

11:54

[The Archbishop of Canterbury]

My Lords, we need a Bill to reform migration. We need a Bill to stop the boats. We need a Bill to destroy the evil tribe of traffickers. The tragedy is that, without much change, this is not that Bill.

This Bill fails utterly to take a long-term and strategic view of the challenges of migration and undermines international co-operation, rather than taking an opportunity for the UK to show leadership, as we did in 1951. There are too many problems in this Bill for one speech. The right reverend Prelates the Bishop of Durham and the Bishop of Gloucester will speak to other issues, but I hope the Government will listen to the speeches pointing out some of the issues, including the eloquent and detailed speech by the noble Lord, Lord Coaker.

The existing global conventions and agreements need updating in response to the crises we face today. While now inadequate, those conventions offer a baseline from which to build a globally shared understanding of what protection must be given to refugees. They are not inconvenient obstructions to get round by any legislative means necessary. Legal compatibility is a question for the learned lawyers among your Lordships, but it does not require a lawyer to see that what is suggested is a dramatic departure from what was ever envisaged in international law since 1951.

Even if this Bill succeeds in temporarily stopping the boats, and I do not think it will, it will not stop conflict or climate migration. The IPCC forecasts that climate change by itself, let alone the conflicts it is already causing, will lead to at least 800 million more refugees in total by 2050.

What if other countries follow suit? The UNHCR has warned that the Bill could lead to the collapse of the international system that protects refugees. Is that what we want the United Kingdom’s contribution to be in our leadership? Currently, 80% of refugees are still in the global South, protected by the poorest countries in the world. Of course we cannot take everyone, and nor should we, but this Bill has no sense at all of the long-term and global nature of the challenge the world faces. It ignores the reality that migration must be engaged with at source, as well as in the channel, as if we as a country were unrelated to the rest of the world. It is a siloed Bill, not a whole-of-government Bill. It does not draw in conflict management and prevention, which drives migration. It does not draw in climate impacts, which drive migration and conflict. It is isolationist. It is morally unacceptable and politically impractical to let the poorest countries deal with the crisis alone and cut our international aid.

Nor is there any measure in this Bill for engaging with the criminal gangs of traffickers directly and offensively, rather than trusting simply to what appears to be the unpredictability of market forces—as if traffickers were rationally trained economic actors and not appalling criminals. Safe, legal routes must be put in place as soon as illegal, unsafe routes begin to be attacked. We cannot wait for the years that will take place before that happens.

This Bill is an attempt at a short-term fix. It risks great damage to the UK’s interests and reputation at home and abroad, let alone the interests of those in need of protection or the nations that together face this challenge. Our interests as a nation are closely linked to our reputation for justice and the rule of law, and to our measured language, calm decision and careful legislation. None of those is seen here.

Long-term, globally co-ordinated solutions must be part of the way forward. This nation should lead internationally, not stand apart. I intend to table amendments in Committee that encourage this longer-term thinking and collaborative focus, including a plan for combating traffickers and working with international partners to look at updating the 1951 convention.

Nevertheless, I hope that this House will not support the excellent, sympathetic and carefully put amendment in the name of the noble Lord, Lord Paddick. I agree with its sentiment but I also believe that, as the noble Lord, Lord Coaker, said, it is our duty to change, not to throw out, the Bill.

Finally, as one might expect from these Benches, in the New Testament, in Matthew, chapter 25, Jesus calls us to welcome the stranger. That call has been part of the history and culture in this country for centuries and was part of the drive for the Modern Slavery Act. I urge the Government to reconsider much of the Bill, which fails to live up to our history, our moral responsibility and our political and international interests.

12:00

[Lord Howard of Lympne (Con)]

My Lords, it is indeed a privilege to follow the most reverend Primate. I am sure that the whole House will wish to congratulate him on the most distinguished part he played in the Coronation proceedings on Saturday.

Notwithstanding the eloquence of those who have previously spoken in opposition to the Bill, I cannot agree with them. I support the Bill. It is the first duty of a Government to protect the borders of their state, and the Bill represents the best available means of achieving that objective.

I shall make three points. First, I want to deal with the allegation that the provisions in the Bill, particularly those relating to interim rulings of the European Court of Human Rights, in some way breach the rule of law; secondly, I want to comment on the provision of safe routes for asylum seekers; and thirdly, I want to consider the extent to which the Bill’s measures are likely to succeed.

The provisions of Clause 53 have attracted a good deal of controversy. It has been suggested that they constitute a breach of our duty under the European convention and therefore a breach of the rule of law. In order to assess the validity of those arguments, it is necessary to examine the legitimacy of the power of the European Court of Human Rights to make interim rulings—which is what Clause 53 is all about.

The European court derives its authority from the convention. Article 46 of the convention expressly states that only final judgments of the court are binding. Rule 39 of the court’s rules of procedure, which provides the basis for its ability to make interim rulings, states only that it may indicate the measures that it thinks should be taken in any case. It is true that the court, in a case in 2005, seemed to conclude that it could make a binding interim ruling, but that was clearly inconsistent with the convention and with rule 39 itself.

Against that background, let us consider the ruling that the court made last year in relation to the Government’s plan to remove illegal immigrants to Rwanda. It was an ex parte ruling so the UK Government had no opportunity to state their case, it was issued by an anonymous judge in a press release, and it was indefinite in the sense that no provision was made for a hearing to take place at which the UK Government could state their case. It was contrary to all the rules of natural justice. I ask your Lordships to consider the fate, on appeal, of any first-instance judgment in our courts made in that way. It would not survive five minutes.

The response to that lamentable state of affairs set out in Clause 53 is commendably moderate. It gives a Minister of the Crown discretion, and in subsection (5) it sets out some of the matters to be taken into account in exercising that discretion. Those matters represent all the elements of natural justice that were lacking in the interim decision made by the court last year, so I commend Clause 53 to your Lordships.

Next, I would like to say a word about safe routes. There are of course legitimate arguments to be made about safe routes, but they are—I am afraid—irrelevant to the need for measures to deal with the boats. Let me explain why. Unless everyone—and I mean everyone—who applies for leave to enter the UK through a safe route is granted that right, there will be some who are refused. Some of those who are refused will be able to acquire the means to pay the people smugglers, and the people smugglers will continue to put them on boats to cross the channel. Whatever the arguments in favour of safe and legal routes, they are—I repeat—irrelevant to the main provisions of the Bill.

Finally, I want to say something about the likely efficacy of the measures set out in the Bill. There can, in my view, be little doubt that the most effective way of dealing with the problems posed by the illegal immigrants crossing the channel is to reach a return agreement with France. We reached such an agreement in 1995 when I was Home Secretary. Both countries agreed to take back anyone who had entered one country from the other and who was refused admission. Although those refused admission to the UK far outnumbered those who applied for and were refused admission to France, France honoured and complied with the agreement—which, as a matter of fact, has never been rescinded or revoked. I accept that France is not now prepared to implement this or any similar agreement, so the Government have to take whatever action is available to them. It seems to me that this Bill represents the best option available. I believe that it will have a deterrent effect and diminish the ability of the people smugglers to continue to ply their evil trade, and I commend it to the House.

12:06

[Lord Dubs (Lab)]

My Lords, it is a privilege to be able to take part in this debate. Given the attendance in the House today, the number of speakers and the number of NGOs that have contacted us with representations about the Bill, there is clearly a great deal of public interest in the Bill—quite a lot of which is in support of the opposition to the Bill.

I listened to the Minister very carefully when he made his opening remarks. I am not sure I have the wording quite right, but he said that this Government take international obligations seriously—then he proceeded to explain why that was not the case. There have been so many instances where a Minister has been forced, as it were, to eat their words. For a long time, we have valued the international consensus on human rights, including refugees, and we have felt that this was a part of the world that we wanted to be in: it was healthy, sensible and humane. When countries have torn up that approach, we have condemned them properly—we know who they are. The Minister says that we take these obligations seriously; we are not going to debate Northern Ireland, but it was inferred about some Northern Ireland matters as well. It is fundamental to the reputation of this country, as I think the most reverend Primate made very clear, that we take a clear stand on human rights. We have set standards and, indeed, for a long time the world has followed us.

I was with the Joint Committee on Human Rights in Strasbourg some time ago visiting the European Court of Human Rights. At that time, there was some talk about this country not adhering to the decision of the court on voting rights for prisoners in jail. It was said to us in Strasbourg that Britain has a reputation for adhering to decisions made by the European Court of Human Court and has stuck by the European convention. If we did not, the notorious abusers of human rights would simply say, “If the United Kingdom doesn’t do it, why should we?”. That is already beginning to be the case—we are beginning to hear that.

The United Nations High Commissioner for Refugees made a statement, which noble Lords have probably all seen. I quote a small part of it:

“The effect of the bill (in this form) would be to deny protection to many asylum-seekers in need of safety and protection, and even deny them the opportunity to put forward their case. This would be a clear breach of the Refugee Convention and would undermine a longstanding, humanitarian tradition of which the British people are rightly proud”.


If the United Nations High Commissioner for Refugees says that something is in breach of the refugee convention, surely they are the guardian of the convention, and it is not up to Governments to say, “We don’t like this bit of it, and we don’t intend to go along with it”.

There are so many ways in which our refugee system is a mess at the moment. We have had it referred to in earlier speeches—by my noble friend Lord Coaker, for example. But the Bill tackles virtually none of those. We have an enormous backlog of unresolved cases. Anybody sitting in Calais will say, “Look, the Brits can’t even resolve those cases—there are 130,000 to 150,000 of them. The Home Office isn’t capable of making any decisions, so let’s have a go, because they won’t make a decision about us either”.

The Government talk about return agreements. I welcome the fact that the Prime Minister went to France and discussed this with the French authorities, something that we have long been asking for, but the fact is that there is no return agreement in place with any country—and with Rwanda, it will not be a return agreement. If the Minister could indicate where such an agreement exists, maybe some of the things that he said will fall slightly into place.

I was very concerned about what the Minister said about judicial review, and I am sure that there will be amendments to that effect. If I understood him correctly, he was saying that judicial review would be much more limited than in the past—and we have always seen judicial review as a fundamental safeguard. Reference has been made to the rights of children. The Minister says that we will hold them here until the age of 18 and then we can remove them. Previous Governments have said that children will be treated in a more humane way—but no, that appears no longer to be the case.

As for safe routes, I know that the noble Lord who preceded me said that he did not think that safe and legal routes would work. However, I am sure that it is right, when there are safe and legal routes, that people sitting in Calais or elsewhere will try to use them, as they have in the past.

I think that a noble Lord has already referred to this matter, but the humanists have drawn attention to the list of 57 countries that are said to be safe. A Humanists International report found that 10 of those have on-book prison sentences for blasphemy and apostasy —and many are enforcing those laws. Significantly, Nigeria is one of those countries, maintaining the death penalty for blasphemy. Indeed, the president of the Nigerian Humanist Association is serving 24 years in jail for blasphemy, so it is not safe to send people to that country.

I fear that small boat crossings will not be dealt with by the Bill. There is an argument that we must get public opinion on our side—public opinion matters—but some of the language used by some Government Ministers is intended to inflate public opinion and make it hostile to refugees, rather than enabling us to resume our tradition of welcoming people who are fleeing for safety to our shores.

12:13

[Lord Scriven (LD)]

My Lords, what an absolute pleasure to follow the noble Lord, Lord Dubs, who is a living example of what happens when a country opens its hearts to refugees and how those people can then settle here and contribute to the future prosperity of the nation that they make their home.

This Bill has already failed in its primary purpose, set by senior government leaders. It failed on Thursday, when the results from the red and blue wall seats came in and demonstrated that the Bill had not delivered Conservatives the votes that they sought. This is not a Bill to deal effectively, sensitively and humanely with those seeking refuge via unofficial routes. There is no such thing as an illegal route—there are unofficial routes into the UK, sometimes in very dangerous situations that could cause loss of life.

The Bill is highly political and has nothing to offer in getting rid of the backlog of asylum claims. It has nothing to offer to effectively deter the real criminals, those who traffic and profiteer from the desperation and misery of those seeking asylum in the UK, and it is not effective in building a coalition of international partners to work across the globe to deal with this.

For the Home Secretary, the Bill is about trying to win votes in some parliamentary seats by using language that dehumanises people and using traumatised and vulnerable people as political pawns. The Government say the Bill is about stopping the boats, which it will not do. Because of that, this House has a duty to stop the bull.

The Government have no clue how this will all work out. If they had, they would have published an impact assessment. They know that doing so would expose the false nature of their proposals and claims about what the Bill will achieve. One third country, Rwanda, has signed up to this deal to offshore the UK’s obligations to process and settle those seeking asylum in the UK. Rwanda will be able to take a maximum of only a few hundred people in the next few years.

The Government can make a wish list of third countries and put it in the Bill, but it would mean nothing. No other country has signed up and the Government know that they are light years away—if not further—from getting enough third countries to take the number of people that will seek asylum in the UK via unofficial routes. That will therefore lead to many hundreds of thousands of individuals stuck in limbo in new Home Office refugee prisons, as no other options are available under the Bill.

Where will vulnerable and traumatised individuals be imprisoned by the Home Office? These Home Office refugee prisons have to be identified, commissioned and, in some cases, built, whether they float or are on terra firma. According to the Refugee Council, these places will cost the taxpayer an extra £6 billion in the next few years. It is impractical, expensive and inhumane. That is not how a proud and decent country deals with those fleeing war, torture and rape.

How the Government of a nation deal with the most vulnerable says a lot about their values. The Government have chosen to treat unaccompanied children seeking refuge—some of whom will have seen their parents killed, or acts of war, or who will have been sexually exploited and trafficked to the UK—as criminals not worthy of having the dignity, hope and opportunity to rebuild their lives and settle here in the UK.

Under the Bill, children can be detained at the Home Secretary’s wish and for as long as she sees fit: a child version of refugee prisons. It is entirely unclear how the powers set out in the Bill will sit alongside local authorities’ duty under Section 17 of the Children Act 1989 to safeguard any child in their area and take them into care under Section 20 if the criteria for so doing are met. The Bill has the potential to make it harder for local authorities to fulfil their duties under the Children Act to ensure stability for children as their corporate parent and to protect and support child victims of trafficking and exploitation.

If a child is lucky enough to be in the care of a local authority until the age of 18 and has the protections of looked-after status in law, just what awaits them on their 18th birthday? Imagine a traumatised and vulnerable child who arrives in the UK aged eight spending 10 years building a life, a network of support and friends and getting educated here, knowing nothing but a life in the UK, and then the Government snatching that all away from them and throwing them out of the country to God knows where at the age of 18. Do the Government not understand how impractical and inhumane this is? It is inhumane, as thousands of young people getting near the age of 18 will just disappear, many into the hands of criminals and traffickers, and it is impractical, as we are back to the imaginary third countries which will not be waiting with places to take these individuals, so they will be left in limbo in an adult Home Office refugee prison.

As well as impractical and inhumane, the Bill is ineffective. It is built on the ridiculous premise that the only way to stop the traffickers profiteering is to criminalise their vulnerable victims and treat them in a subhuman way. The Bill undermines our commitment to international law and our obligations under the UN conventions on refugees and the child, and it degrades what it means to be British. It trashes our proud and long-held values and our record, dating back to 1951, on how we deal with those seeking asylum. It undermines our country’s international standing for upholding and abiding by international law.

For these and many other reasons, the Bill has no place on the statute book. It must be placed in the dustbin of history as soon as possible. That is why I will support my noble friend Lord Paddick’s fatal amendment to ensure that the Bill does not pass Second Reading.

12:19

[Baroness Prashar (CB)]

My Lords, it is a clever ploy to entitle this Bill the Illegal Migration Bill. Not for the first time, illegal migration has been conflated with asylum. This is essentially an asylum Bill, and asylum is a fundamental right. Migration, of course, is a choice. Although the Government claim that this Bill is designed to deal with boat people, it will apply to everyone who arrives here by whatever means as of 7 March 2023. It is doubtful whether the Bill will achieve its objectives. It will probably make matters worse and damage our reputation internationally.

No one denies that action is needed, but what we want is an effective, fair and compassionate asylum system which respects our international obligations and the rule of law. Asylum is a collective responsibility of all states—a global challenge which requires international co-operation, working within regional and international frameworks to achieve effective and sustainable results. This cannot be done in isolation.

We need a system that ensures that all claims are considered efficiently and speedily, no matter what the mode of travel. This requires streamlined processes and tailored asylum procedures. We need an expansion of safe and legal routes to ensure that those suffering persecution can reach the UK safely without being exploited by smugglers. We need to support those seeking asylum so that they engage effectively with processes, integrate and contribute by being able to work here.

The Bill falls very short of these objectives. In fact, several amendments introduced on Report in the other place will raise the bar even further. They will have the overall effect of making it even harder for people subject to the duty to remove them from the UK to resist removal. It will raise the threshold for a person to show that they would suffer serious harm.

The Government themselves have identified the new clauses on age assessments as ones that they are unable to state are compatible with the European convention. Another clause identified as one that could not be declared compatible with the convention is the one that gives immigration officers new powers to search for, seize and retain electronic devices, such as mobile phones, from individuals who are liable to be detained under the Bill, and to access, copy and use any information on them.

The Government’s own quangos remain seriously concerned that the Bill risks placing the UK in breach of its international legal obligations to protect human rights by exposing people to serious harm—particularly the measures for the detention of children and pregnant women—and removing protections for victims of trafficking and modern slavery. The Bill itself starts with a statement that the Minister is unable to say that its provisions are compatible with the convention.

In effect, the Bill will block almost everyone who arrives here by means which the Home Office deems irregular from making admissible asylum claims. By making the claims of people who have entered and arrived in the UK by irregular means permanently inadmissible, it will also make nearly all these people unremovable in reality, despite placing a duty on the Home Secretary to remove them if they meet certain conditions. This will create a large and permanent population of people who will live in limbo, at public expense, for the rest of their lives, without any hope of securing lawful status. For those who may be removed to a third country there will be a new complex fast-track system, with limited judicial scrutiny to make a claim that suspends removal.

It is predicted that the Bill will result in a large number of people being detained. It removes almost all protections for victims of modern slavery who are targeted for removal, leaving them at the mercy of traffickers. In fact, it strengthens the hand of traffickers. It is equally damaging for children.

What is missing from the Bill are any specific proposals for safe and legal routes to enter the UK. The Bill contains no confirmed details of any additional safe routes. Even with the amendment on Report in the other place, there is no obligation in the Bill to create new routes. There is nothing about speeding up processing of claims. Decision-making is slow and the backlog is increasing.

As we know, the Bill has been condemned by a whole range of people. The European Commissioner for Home Affairs and the Council of Europe Commissioner for Human Rights have raised serious concerns that, if the UK were to withdraw from the ECHR, the EU could terminate the law enforcement and judicial co-operation in criminal matters part of the EU-UK Trade and Cooperation Agreement, as that agreement allows the EU to suspend or terminate the agreement as a whole if there is a serious and substantial failure by the UK to respect human rights and human rights treaties to which both are parties.

What makes things worse is the rhetoric that has accompanied the Bill, which damages what Britain stands for. Hostile language that demonises and dehumanises those seeking asylum and refugees creates resentment and reprisals. Equally damaging are the attacks on lawyers and of course this House. These attacks highlight the Government’s inability to respond to substantive concerns raised by the Bill, and clumsy comments that the values of those seeking to come here are at odds with the values of this country are not helpful. It is not the values of those seeking asylum here which are at odds with our values but this Bill which is at odds with the values of our country.

12:26

[Lord Forsyth of Drumlean (Con)]

My Lords, I will concentrate my remarks on the amendment in the name of the noble Lord, Lord Paddick, which is a complete abuse of this House. This House is here to revise and offer advice to the elected House of Commons. For any Member of this House to bring forward an amendment that seeks to kill a Bill completely, which has been passed by majorities of around 60 in the other place and which is an absolute priority for the Prime Minister to stop the boats, is an absolute abuse. I do not think that any Member of this House who respects its values and its role could possibly go through the Lobbies and vote for that amendment.

Of course, the point of the Bill is to stop the boats. I have listened carefully to the speeches that have been made and I have yet to hear a remedy from anyone who opposes this Bill as to how we are going to stop the boats. I hear a lot about the rights of children and the right of people fleeing persecution, much of which I support. However, I cannot support the idea of people drowning in the English Channel who are fleeing from a safe country, which is France. To be drowned in the English Channel and watch your children being taken by the sea must be a most horrendous experience, yet all the people who oppose the Bill have nothing to offer by way of a remedy for that problem, which is happening now and which will happen during the course of the following weeks as the summer—

[The Archbishop of Canterbury]

If the noble Lord were to look at Hansard for 11 December, he would find a whole-day debate on immigration which puts forward some very clear ideas about stopping the boats.

[Lord Forsyth of Drumlean (Con)]

I am most grateful to the most reverend Primate and I echo the words of my noble friend about what a fantastic job he did on Saturday. I am in strong agreement where he is concerned with issues spiritual rather than temporal. I use the word temporal in this sense because there are of course many things that we can do, but these are all going to take time. People are drowning in the English Channel now. People are leaving a safe country in order to come here, and it is fatuous to try to present this in the way that many have done. The much-misquoted saying, often attributed to Edmund Burke but in fact from John Stuart Mill, is:

“Bad men need nothing more to compass their ends, than that good men should look on and do nothing”.


That is what we are hearing today, effectively that we should do nothing about the immediate problem.

To return to the amendment, the role of this House is to give advice and make amendments. I accept there are issues with the Bill that need further scrutiny, particularly the issues of those who are already here in the United Kingdom and who are victims of slavery and placed in a position where they are unlikely to help the police, or those who are concerned, to deal with the real villains. These are the traffickers and the men and women who exploit people who are under enormous stress and strain. It is just not reasonable to criticise the Government for trying to deal with this problem. How on earth can it be justified that 40,000 Albanians are able to come to this country by crossing from France—a safe country—and to argue that this should not be tackled?

Those who criticise this country’s values need to ask themselves why so many people want to come here rather than remain in France, on the other side of the channel. It has been suggested that perhaps hubris has set in, as a result of the success of the liberals—I call them liberals because they are not liberal democrats. Democrats do not seek to use an unelected House to overturn the decisions made by an elected House. We know perfectly well that the United Kingdom has finite capacity. Our public services are under immense strain and yet there is a notion that we should be spending billions of pounds and not actually addressing the problem of stopping the boats. I say to those who oppose the Bill, by all means improve it, but I am delighted that the Official Opposition have indicated that they will not support the amendment, and the most reverend Primate said the same. We need to recognise that something needs to be done, and done now. This is something, which is an alternative to doing nothing, which is the mission of the people opposite.

[Lord Griffiths of Burry Port (Lab)]

My Lords, before the noble Lord sits down, may I ask in a more timely manner what I was going to ask earlier? The most reverend Primate the Archbishop of Canterbury asked whether the noble Lord was aware of the practical proposals made in a previous debate. The noble Lord did not answer that question, and I think the House would like to know.

[Lord Forsyth of Drumlean (Con)]

I am most grateful to the noble Lord, for whom I have immense respect. Of course I am aware of the measures, but I thought I pointed out that those would take time. It is possible to argue for changes in our approach and that it is necessary to use overseas aid to support people in their own countries. I get all that, but there is an immediate problem now, and this Bill deals with it. It is a duty upon this House to get this Bill on the statute book so that we can deal with the terrible things happening in the English Channel.

12:33

[Baroness Lister of Burtersett (Lab)]

My Lords, I refer to the register and support from RAMP. Here we go again: the wretched of the earth, fleeing violence or persecution, are to be thrown from the frying pan of the Nationality and Borders Act, enacted less than a year ago, into the fire of this punitive and inhumane Bill, which effectively raises a “No asylum seekers here” sign at our border. Moreover, it will have retrospective application, which is just one example of how the Bill undermines the rule of law.

The Bill has serious implications for groups in especially vulnerable circumstances. Despite the limited concessions in the Commons, the Children’s Commissioner, who feels passionately about this, warns that the Bill

“would place the UK in clear breach of its international law obligations under a range of children’s rights treaties”.

Clear legal restrictions on children’s detention, introduced by the Conservatives, are withdrawn; rights concerning age assessment are circumscribed, contravening the recommendations of the government-appointed advisory committee; and future citizenship rights are lost. Yet there is still no sign of a child rights impact assessment. Can the Minister therefore explain how the Home Secretary will meet her duty to safeguard and promote the welfare of children under Section 55 of the Borders, Citizenship and Immigration Act 2009, the importance of which to this Bill is underlined by UNICEF, among others? Furthermore, the restriction on the detention of pregnant women, which the Government conceded in 2016 in response to successful amendments in this House, will be removed, with serious health implications for mother and baby.

At the heart of the Bill is what the UNHCR describes as an “asylum ban”. Such a ban, it makes clear, contravenes the refugee convention and international human rights law. In the Commons, the former Prime Minister, Theresa May, warned of the damage that this could do to our international reputation. The UNHCR also warns that the Bill does not guarantee more safe and legal routes; on the contrary, it places an inflexible annual cap—which includes children—on the numbers admitted this way. Moreover, it makes clear that, welcome as they are, such routes can never substitute for the right to claim asylum.

In the Commons, the Home Secretary described as “fatuous” claims that the Bill breaches refugee convention obligations. Can the Minister explain why we should accept the Government’s interpretation of the convention over that of the body with supervisory responsibility for it—described the other day in this House as “a key partner”? In the absence of adequate third-country agreements, can he also explain what will happen to all those deemed inadmissible who cannot be returned to their country of origin under the convention because their claim will not have been assessed? The fear of the Refugee Council, the UNHCR and others is that those people will be left in semi-permanent limbo, at risk of destitution. The likely harm to mental health is spelled out by the Royal College of Psychiatrists.

The Bill’s title is phrased so as to signal the false claim that desperate people who cross the channel in boats, or enter via other unauthorised means, are economic migrants. Yet analysis of official data indicates that six in every 10 who crossed the channel last year would be recognised as refugees. In contrast, the Home Office has been unable to provide evidence to back its representation of them as economic migrants. Instead, as already noted, Ministers have deployed vile, dehumanising language such as “invasion”, “breaking in” and “cannibalise” to create fear and hostility among “the British people”, undermining the very social cohesion they claim to be promoting—all in the name of compassion.

The significance of such language is brought home by Erfan, an asylum seeker, in the preface to a recent JRS UK report on Napier barracks. He writes how he came to realise that

“these are not just words. They build a completely new identity, which then justify how you will be treated, seen and talked about. The language that dehumanises people makes it seem acceptable to place them in inhumane conditions and cut off from society”.

Such words, he warns, “stigmatise and justify discrimination”.

There can be no justification for such language. Nor can this shameful Bill be justified, as the wide range of civil society organisations briefing us so well have made clear. It was rushed through the Commons and still awaits the required impact assessments. We have a heavy responsibility in this House to scrutinise and amend it from start to finish. I hope that we will fulfil that responsibility and protect the fundamental right to claim asylum.

12:38

[Baroness Kramer (LD)]

My Lords, I decided to speak today after reading the words of the Immigration Minister, Robert Jenrick, speaking for the Government to Policy Exchange, demonising migrants and failing to recognise our responsibilities to refugees seeking asylum. He said that

“excessive, uncontrolled migration threatens to cannibalise the compassion of the British public”.

“Cannibalise”—what a deliberate and demonising choice of word. He went on:

“And those crossing tend to have completely different lifestyles … to those in the UK … undermining the cultural cohesiveness”.


It was deliberately divisive language and certainly not borne out by the UK experience.

Throughout that speech, there is a constant failure to look at economic migration separately from asylum seeking. I am the daughter of a refugee. My mother was born into an Orthodox Jewish family in a small village in eastern Hungary. When the Hungarian Government brought in anti-Jewish laws in 1938, she and her family tried to obtain visas to go to another country but, like so many others, found that no visas were to be had. She decided to be a survivor: she became a nightclub dancer in order to join a troupe going on tour in the Middle East. Once outside Hungary, she settled in Greece, which she hoped to make her home, but by 1943 the beginnings of civil war in Greece were tearing Athens apart. Her bed was strafed with bullets; friends standing beside her were shot down in the street. Women’s bodies lay butchered—women were particular targets.

She had met my father, a major with the British Army in Greece, but he was denied army permission to marry her and his attempts to get her papers to go to Britain were rejected. He returned with his regiment to the UK and was demobbed—so you can imagine his astonishment when, on Christmas Eve 1945, he got a call from an airbase in southern England to say that my mother had arrived on a British miliary plane from continental Europe. She had been smuggled on board by the RAF. She was a genuine refugee but no one could argue that she had chosen an official route—or, as this Government would call it, a legal route. This Government would send her to Rwanda as an undesirable.

I see that the Minister is no longer in his place, so I ask the Whips and others to put this point to him, because I want an answer. I want the Minister today to show me the body of evidence and research that shows how British compassion has been “cannibalised” by asylum seekers and by people like my mother and me. I want to see his evidence of damage to cohesion that genuine asylum seekers, never mind migrants, have inflicted on the UK. I suspect that we will find it has no substance. He needs to show why diversity is a weakness not a strength. Ironically, if the Government continue to argue that migration creates such problems, it should never by its own logic return a single refugee to any country that already has a significant migrant population—and that eliminates most of Europe and indeed Africa, including Rwanda.

Limiting economic migration has never required treating asylum seekers as undesirables. I argue for the Britain that we saw this weekend at the Coronation, not threatened by diversity but energised by it, and comfortable with its complex identity. I recognise that not all the children of migrants or refugees share my view. Suella Braverman, the Home Secretary, the daughter of migrants, asserted in the Commons on immigration that

“we have had too much of it in recent years”.—[Official Report, Commons, 13/3/23; col. 575.]

But many do share my view and say, “Do to others what I would ask you to do for my family”. I repeat to the Minister, who has now returned to his place, that he should put in front of us today the evidence of the damage that he claims underpins and justifies this Bill, without which it should not stand—please feel free to use my mother and me as examples.

12:43

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

My Lords, few situations are so bad that they cannot get worse, and certainly the current world migration crisis will inevitably get worse. Whether the UNHCR figure for those currently needing resettlement is 100 million or just tens of millions, future floods, fires, famines and human conflicts will inevitably drive it up. Obviously, it is insoluble by any single country, so—and this is the easy point to make—there must be international agreement as to what share of the burden we must all take. Of course, we must make the effort, but let us not pretend that it will succeed. It will not.

Each country, like the UK, must find its own solution, including sensibly—surely few would dispute—deciding on a cap for admissions and the best way for administering it. Plainly, this is by arranging safe and legal routes for the number decided on and, as under the several schemes currently operating—Ukraine, Hong Kong, Syria, Afghanistan, family members and so forth, some directly involving the UNHCR, others not—giving proper consideration in advance of arrival to who should come.

Now that we have absorbed so many Ukrainians and Hong Kongers, surely the time is ripe for a wider new scheme, ideally in co-operation with the UNHCR, to admit more. Indeed, this now seems essential. Unless a generous, fresh resettlement scheme is decided on, there is little hope of persuading people to sign up to these obviously severe measures. Happily, most of this country is still hugely sympathetic to refugees.

How infinitely preferable would this be to the present chaotic situation of having to process those arriving after perilous boat and lorry crossings? As to these, one is entitled to ask: why should they steal a march and gain an advantage over those we will have agreed to take under the capped schemes? Surely it cannot be suggested that we should reduce the number we agree to take lawfully under these schemes to accommodate those coming by boat. Although I do not accept that those arriving from a safe third country, such as France or Belgium, are on that ground alone disqualified from refugee status—indeed, having myself in decades past judicially decided the contrary—there is no reason to ignore the fact that their lives were not in immediate danger when they took to the boats. They had the money to pay the smugglers and, in a number of cases, had already been refused asylum in France or plainly had no legitimate claim to asylum, as with most of the Albanians.

At the core of this Bill, therefore, necessarily lie the twin aims of introducing and enforcing a cap for the numbers we take in future and deterring all others from arriving illegally by ensuring that, with only the narrowest exceptions, they gain absolutely nothing from doing so. The need and basic justification for that is all that I have time for. Plainly, the Bill raises many different and difficult questions—on children, accompanied and unaccompanied; about whether, where and for how long to detain those coming illegally; about Rwanda; about modern slavery; about Article 39 interim orders; about the existing backlog, et cetera—but there is no time to discuss those today. No doubt the Bill can be improved in various ways, but we must recognise that almost every amendment we make to soften it can tend only to weaken its essential objectives: stopping the boats and—the real desire of many, sometimes perhaps masked by an avowed concern about deaths in the channel—limiting the overall numbers admitted.

We really must now harden our hearts and give the Government the opportunity by this Bill finally to confront this most intractable of problems. I hope not to lose too many of my friends by saying so.

12:48

[Lord Dobbs (Con)]

My Lords, it is a pleasure to follow the noble and learned Lord, Lord Brown. We are told that this Bill is unethical, which puzzles me, because, like my noble friend and roommate Lord Forsyth, I cannot quite get my mind round the ethical nature of this bizarre proposition that unelected parliamentarians should, without any real discussion, destroy a Bill that has been passed by our elected House of Commons and for which there is very considerable public support—but heigh-ho.

I find the Bill distasteful in many ways. I wish we did not have to do it. But the issues it tries to resolve are supremely distasteful—actually, they are barbaric. We need action. We are told the Bill is full of weeds. Well, if there are weeds in the garden—knowing modern legislation, there are probably a good few—you pull them out: you replace them. You do not call in a cement truck to cover the entire thing in concrete and bury it, as this fatal amendment demands.

At its heart, the Bill aims to find a better means of fighting the modern slavers and people smugglers—saving innocent lives. That seems a most moral objective. It aims to stop the evil trade in human beings by the smugglers and slavers. It is only by beating them—crushing them, if we can—that we will put an end to the miseries and deaths we have seen all too often on the seas. If we do not act, and lose control of our borders, we will play straight into the hands of the racists and bigots who will stir up hatred on our streets and in our communities. There are terrible consequences to be paid if we fail in this.

How do we stop those who arrive here claiming to be children, with stubble on their chins, who have deliberately destroyed all their documentation and paid thousands of pounds to people traffickers, enabling them to continue their awful trade? These people—these pretenders, if you will—are the enemies of genuine refugees, because they help to create and sustain an evil system that is run by criminals of the cruellest kind, who think nothing of throwing children overboard to drown in order to save their own miserable lives. They trade in lies and in lives. It is our moral obligation to stop them—to bring an end to the unimaginable pain of mothers and fathers watching their children drowning off our shores in the channel. No amount of hand-wringing or bell-ringing will do that.

I know that at Second Reading in the other place, the Labour Party said that it wants to boost international policing to try to catch the smugglers. Let us hope they can catch the drug traffickers too while they are at it. They know that that is not a solution. This quixotic and deeply unconstitutional proposal to kill the Bill is a moral cop-out. There are no simple solutions. It is about not just small boats but jumbo jets, too, and a modern world in huge flux.

[Baroness Miller of Chilthorne Domer (LD)]

Can the noble Lord—and his noble friend Lord Forsyth—explain what the Members of this House thinking when they designed a system that allows for a fatal amendment when legislation is bad enough? If, in 1946, the Salisbury convention was considered absolutely adequate, that is what we would have, with no provision for a fatal amendment.

[Lord Dobbs (Con)]

I will try to answer the noble Baroness’s question like this: I wish the Liberal Democrats would listen to the arguments that will come in Committee and contribute to them, rather than trying to kill off all discussion. That is unprincipled and unconstitutional.

This is a world in which there is no one moral solution any more than there is one legislative solution. Of course, we will have to do much more, but this Bill is part of that effort. I ask the doubters: what are your plans? Apparently, you do not want to discuss them, but how will you stop the slavers and smugglers? What will you say to the people of this country, who have human rights too? If not this Bill, then what Bill? What would the doubters do? That is what we need to hear—in legislative detail, not just in passing debate. We wait to hear whether the moral outrage is matched by solid proposals for action, but I suspect we might be waiting for that from the opposition for a very long time.

12:55

[Lord Rooker (Lab)]

My Lords, I start where the noble Lord, Lord Dobbs, finished. Some asylum seekers clearly are non-religious. It is worth repeating that, of the so-called safe countries in the Bill, at least 10 have on-book prison sentences for blasphemy and apostasy. As my noble friend said, the president of the Nigerian Humanist Association, Mubarak Bala, is serving 24 years for blasphemy—you would have to be a pretty nasty piece of work to support that as a policy.

I want to go back to new Labour—I know that is not popular with recent Labour leaders. Between June 2001 and June 2002, I was privileged to work under my noble friend Lord Blunkett as Minister for Immigration, Citizenship and Nationality at the Home Office. I was responsible for sending people and families who had arrived illegally in the UK out of the UK. I was criticised by many, including my good friend Chris Mullin in one of his many successful diaries. Chris did say, however, that I was operating the law, and the destination of such families was to safe European countries from which they had travelled to the UK. I recall that they included France and Spain.

I know that it has become unfashionable to praise new Labour, but it remains the case that we were able to use the Dublin convention—not massively, but from time to time—to return people who had no case to be in the UK to whence they came. This Tory Government ripped up the Dublin convention when they organised and controlled the Brexit decisions, including getting rid of freedom of movement. It was a deliberate policy, and everybody knew that Dublin would go without any alternative being in place. As of today, there is still nothing in place. Why? We hear constant talk of popping across the channel and meetings between Ministers, but there is no agreement. The present situation is entirely of this Tory Government’s own making. They own Brexit. They own the actions of the coalition Government—I notice, by the way, that the world started in 2015 according to the Minister today; for most of us it started in 2010, because that is when the Tories came into power. This Government have left the UK unsupported and friendless among our geographic neighbours.

I recall the arguments and briefings in the Home Office about why the UK was a target for illegal migration. Other than the English language there were, and remain, two reasons. The first is that the UK is the easiest European country in which it is possible to work illegally and the second—which helps the first—is that there is no identity system. In 2001-02, we started work on the ID system in the Home Office, and it was pursued by others after my noble friend and I had left the Home Office. It was within sight of implementation when the Tory-led coalition, as one of its first actions under the deal with the Lib Dems in 2010, scrapped it. The Government today own that decision. Of course, that pleased the CBI and other employer bodies, as well as the Tories, because illegal working keeps wages down across the economy. That remains the case today.

New Labour stuck to legal frameworks, which meant that we could talk to our EU partners and not become friendless. While there is not time to go into it, I recall a couple of occasions when the Civil Service had to warn us that we were on the verge of breaking the law —“possible malfeasance” was the phrase used. So we changed policy, unlike the present Tory Government, who simply change the Ministerial Code.

Of course, the routes then were via the Channel Tunnel in lorries. We worked with the French, including visits to Sandgate, to seek to close these routes safely. But we had a large backlog of cases—it was huge. The Home Office employed an expert in operational research from the Ministry of Defence—in fact, I think professionally he was a rocket scientist—who sorted out the flow of work in the Home Office, which vastly reduced the case load. We were actively doing something, and we used external civil servants who were experts in making sure that that was the case. This Government own the present situation in its entirety; the case load has grown due to incompetence. Deliberately shunning friends and breaking international law is not the solution—it is time for another new Labour Government to sort it out.

13:00

[Lord German (LD)]

My Lords, this Bill is one of anachronisms; it is not suitable for our time and does not reflect the values of our country. It has consequences that go far beyond the supposed effect of the paper that the Bill is written upon.

The Bill starts with a statement under Section 19 of the Human Rights Act that the Minister is unable to say that its provisions are compatible with the rights contained in the ECHR—an express acknowledgement that the Bill puts human rights at risk. However, the Secretary of State for Home Affairs stated in the Commons that she was “confident” and “certain” that the Bill’s measures are compatible with our international obligations. So, at the outset, can the Minister tell the House when he replies whether the words on the front of this Bill are as a result of legal advice to Ministers and that the certainty expressed by the Secretary of State is her view and not that of the Government’s legal advisers? I look forward to a report of the Joint Committee on Human Rights, which would be very timely, if we could see it speedily.

Secondly, we are offered no impact assessment to accompany the Bill. As my noble friend Lady Kramer asked: where is the evidence? Why was the Bill put together in such haste that one could not be prepared? Is it because, as there are no options in this Bill, it does not merit an impact assessment? Given that the Bill’s consequences will require large amounts of money, we are at least entitled to know its impact on public finances and resources.

Thirdly, this Bill sets up a substantial shift of power from the courts to the Secretary of State, and from this Parliament to the Secretary of State. The Bill sets up the Government as both judge and jury in a court of their own making. Clause 1(5) of the Bill disapplies Section 3 of the Human Rights Act, meaning that courts will no longer be required to read provisions—or any regulations that the Home Secretary makes under the extensive delegated powers she gives to herself—to verify their compatibly with convention rights. Using as of now unknown legislation, the Bill proposes giving the Secretary of State very broad powers, which Parliament will have no ability to alter or to demand a government rethink.

I illustrate my fourth concern through the story of Linh, who was trafficked into the United Kingdom at the age of 15. She was discovered by police in the back of a lorry. Social services placed her with a foster family, where it was discovered that Linh was five months pregnant, having been raped by her traffickers. Fortunately, Linh was able to move in with the foster family and give birth to her son. Under this Bill, Linh would not be able to use her status as a victim of human trafficking to challenge her removal. Even if Linh had passed through a safe country, she could not have claimed asylum there because she was held prisoner by her trafficker. Under this Bill, Linh would not be able to make a new life in the United Kingdom for her and her son. Moreover, the hand of Linh’s captor would have been strengthened by this Bill. They would have threatened that, if she tried to escape and contact the authorities, she would be removed from the United Kingdom rather than be provided with safety. The Illegal Migration Bill would serve the interests of Linh’s captors rather than secure her rights.

So, we are presented with a Bill which flouts human rights legislation and deprives those seeking asylum of their right to have their case heard. It is a Bill which amasses power to the Government from the courts and Parliament, and breaches our international obligations.

Of course we face an issue that requires a solution, but that means working with our international partners, including our partners in Europe. There seems to be a fundamental issue here: if the United Kingdom does not like the treaties and international obligations to which it is signed up, it should seek those international solutions that sit at the heart of our international obligations and not try to find a route that will have no success.

This is a dreadful Bill built purely on political dogma. It is unworkable. I have yet to meet anyone who believes that it will achieve any of the aims it sets out. It will leave tens of thousands of people in limbo in this country. It will bring misery to those who genuinely have a case to ask us for a place of refuge. There are no safe routes for many of these people; after the Bill is passed there will be no routes other than the very limited ones before it. It is certainly the case that it does not have to be like this. There are perfectly decent, just and fair alternatives.

13:07

[Lord Green of Deddington (CB)]

My Lords, there will be plenty of time later to tackle the many complications in this Bill. For my part, I will make a short speech but I will take a longer and wider view.

It is now about 20 years since I co-founded Migration Watch UK, with the assistance of Professor David Coleman of Oxford University. In that time, the UK’s population has grown by an astonishing 8 million. That is about eight times the population of Birmingham and close to the population of London. Of this huge number, nearly 7 million has been due to immigration— seven out of eight. That includes the inflow of asylum seekers, which has gone up and down over that period. Nobody likes to say this, but it is surely obvious that, if this inflow is allowed to continue, the whole nature of our society will be changed—not in our time but certainly in our grandchildren’s.

The Government have claimed that their new “Australian- style” immigration system will get the numbers down. Regrettably, that is the exact opposite of the truth. The Government have actively encouraged large-scale economic migration. I briefly mention three measures: they have substantially reduced the educational requirement; they have significantly lowered the salary requirement; and they no longer require jobs first to be advertised on the domestic market. As a result, nearly half of all full-time jobs are now open to immigrant labour—yes, nearly half. It is extraordinary.

The current scale of immigration, of which asylum is only a small part, simply cannot be allowed to continue. The pressure on our schools and public services is heavy and increasing. We already have to build—wait for it—nearly 300 homes every single day just to house immigrant families. Regrettably, that is very seldom mentioned in this House.

That is the wider background to this Bill. Public anger at the chaos in the channel has obliged the Government to focus on that appalling problem but, even at 50,000 a year, as last year, asylum is only a small part of immigration as a whole. When the numbers for calendar year 2022 are published in two weeks’ time, we may well find that net migration is running at 10 times the rate of asylum—that is, about half a million. It could be even higher. If this mass immigration is allowed to continue, it will very rapidly change the way of life that we have developed over centuries. It will also weaken our sense of community as a society. The public sense this, of course, which is why nearly 60% of them want to see immigration reduced.

The Bill may have some impact on one aspect of mass immigration. However, I repeat that asylum, however chaotic, is at present only a small part of a wider issue. A real reduction in net migration, whatever its source, is now essential to preserve the nature of the country that many of us love.

13:10

[The Lord Bishop of Durham]

I declare my interests as a member of the RAMP project and a trustee of Reset.

When looking to engage with a Bill, Members decide whether to focus on the detail or address the underlying principles behind the proposed legislation. This Bill leaves me with no choice but to start with the latter, as it asks fundamental questions about who we are as a nation. In order to supposedly reduce channel crossings, are we really prepared to consent to “extinguishing”, as the UNHCR puts it, the right to claim asylum and withholding support for victims of trafficking, and indefinitely detaining thousands of asylum seekers, including children and pregnant women? We have been left to consider the Bill’s provisions without an impact assessment, but these consequences will potentially lead to an unjustified intolerable level of harm which does not reflect who we are as a nation.

The Bill appears to be fundamentally about preventing those who have travelled irregularly to the UK from claiming refugee protection. This is in clear breach of the refugee convention and indiscriminately applies to everyone, regardless of the violence or persecution they may have fled. Let us be clear: this means even refusing to offer a child or a victim of trafficking the dignity of having their asylum case heard.

More than three-quarters of asylum cases assessed last year were found to be valid, but under the new regime they would be automatically deemed inadmissible. This Bill conversely gives up on the idea of returning home people who do not qualify for asylum by grouping them with those who would qualify and attempting to remove them to a third country. In reality, both groups will be left in a permanent state of legal precarity to face a future of inescapable destitution.

The Home Secretary’s duty to detain and remove asylum seekers changes the nature of detention considerably. It moves it away from an administrative process to facilitate someone’s removal to a wider system of confinement. Therefore, disturbingly, it does not discriminate. The state will view a child or a pregnant woman first and foremost as individuals subject to immigration control, not as an innocent child or a vulnerable mother due to give birth. We need to ask, “What about the Government’s duty to protect?”

Just less than a decade ago, the Conservatives introduced time limits for the use of child detention and, at the very least, I hope to see these limits back in the Bill for all children. A child faced with detention looks at their surroundings and asks, “What did I do wrong to be here?” This develops into the question “What is wrong with me?” We cannot let children face this trauma. As the Children’s Commissioner for England has said:

“It is not acceptable for them to be treated in the same way as adults”.


Safeguarding is not discretionary.

Although the Bill enacts a new system of detention, it does not set any standards, inspection details or protective obligations on the Home Office in terms of accommodation. As I have said before, children need the highest levels of safeguarding written into the letter of the law, and I hope that more detail will be forthcoming from the Government on this. I am reminded of Jesus’s words, that

“it would be better to have a millstone around the neck and be cast into the sea than to cause a little one to stumble.”

This responsibility needs to bear upon us heavily.

No one is questioning the need for compassionate measures to prevent asylum seekers having to resort to dangerous crossings to reach sanctuary. But the rationale behind proposing a cap on safe routes, while simultaneously penalising those who have no access to a safe alternative, is unjust. I do not want to see the UK abdicate its responsibility as a global leader to explore sustainable solutions to forced migration in solidarity with the persecuted. Undermining the global system of refugee protection is no solution, and it is beholden on us all to remember that no one is too different and therefore any less worthy of compassion and respect. I hope our language in debate reflects this truth.

The wonderful founder of Citizens UK, Neil Jameson, sadly passed away recently. He often shared this quote:

“It is not hope that gives rise to action, it is action that inspires hope”.


It is this action I have seen communities up and down the country take, as they have formed community resettlement groups, opened their homes to Ukrainian refugees and supported asylum seekers to build new lives and feel hope again. The British people support and help those who genuinely have need. Although there are strong feelings on the issues that this Bill raises, I pray as we work together to bring a range of amendments that the legislation will better reflect hope and a deeper humanity.

13:17

[Baroness Stowell of Beeston (Con)]

My Lords, I always argue and indeed believe that legislation is improved by the process of scrutiny in this House. However, until the powerful and welcome statement by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who sadly is no longer in his place, I thought that no noble Lords would be willing to see how our persistence against measures in what some have described as “popular Bills” has the consequence of reciprocal persistence and yet stronger measures. So I applaud the noble and learned Lord for his statement, and urge noble Lords to take note of what he said.

That said, I urge my noble friend the Minister, who I commend for the clear and sensitive way in which he introduced this debate, to listen carefully to those noble Lords who seek, with all sincerity, to improve this legislation with the purpose of ensuring in its implementation that it is effective in stopping the boats that cross the channel illegally. However, as much as our collective effectiveness relies on Ministers listening and taking this House seriously, it also relies on us—your Lordships—listening to and taking seriously the public, who demand that their elected Government take action against illegal activity that affects their lives and livelihoods.

We often forget that, as human beings, we all want what we often deny each other—respect and understanding. In fact, last night in this Chamber, when we were debating amendments on the Online Safety Bill, there was quite a bit of frustration at the lack of understanding from the Government in their response to debates. Something that frustrates many of our fellow citizens is the ease with which we demand respect and understanding for ourselves and show it to those who we do not know ahead of those we live alongside and whose support and co-operation we rely on most. Whether we call them the “squeezed middle”, “just about managing” or the “hardworking people who play by the rules”, these are the people we rely on to pay their taxes, keep good order in their communities and uphold British values which we—those of us in leadership roles—have become shy of or are reluctant to promote ourselves.

Our fellow citizens are no less compassionate or caring than us, and they, too, want to—and do—support people in genuine need. But they do not want their compassion to be taken for granted or taken advantage of, and they do not want us to dictate the terms on which they must support others, when it is them who always have to pay, whether that is via the growing queues for public services they have little choice over using, the shortage of housing for them and their families or through the consequential changes to our society which challenge people’s sense of status at work and the cohesiveness of their community.

I enjoy great privilege. Not only do I spend a lot of time with powerful and influential people in Westminster and other walks of life, and I get to hear and learn from their experience and wisdom. I gain the same benefits of wisdom and experience from my close family and friends who ensure that I enjoy and understand a very different world. Unlike most of us, some of them work alongside immigrants from around the world, including people who arrived in the UK on the backs of lorries a few years ago. They, too, hear some tragic stories, but they hear a whole lot more said, which leads them to make a simple plea when they talk to me, which I relate to this House with their sincerity: “Don’t assume or believe that everyone attempting to enter our country illegally is a genuine asylum seeker fleeing persecution”.

When we get to Committee, if noble Lords table amendments about the right for asylum seekers to work, I will say more about why I oppose that and why I am worried about the growing numbers of legal migration to do unskilled or low-skilled jobs. The noble Lord, Lord Paddick, was right to raise the issue of the increasing number of work-study visas, about which I have heard stories of misuse. There is far more to the impact of all this than meets the eye, and the noble Baroness, Lady Kramer, who is no longer in her place, asked for evidence. I would say to the noble Lady that there is plenty, if we are willing to listen.

But today what I ask is how noble Lords opposing the Government on this Bill think they are helping genuine asylum seekers. How does it help to improve the system? Does opposing this Bill help to restore people’s confidence in our country’s ability to distinguish between refugees fleeing for their lives and those who would simply like a better life, but are willing to lie and use illegal means to get here? Does it help to demonstrate that we can and will prioritise the former and not the latter? Does it reassure that we have the necessary support and infrastructure to cope with new arrivals without pitting their needs against those of the communities in which they are put? In short, how does opposing this Bill persuade the public that this House takes seriously all their legitimate concerns, rather than ignoring or dismissing them as the products of ignorance or prejudice?

If the Lib Dems divide the House tonight, and the noble Lord, Lord Paddick, has already said he will, the Minister can most definitely count on my support. I support the Bill.

13:23

[Lord Browne of Ladyton (Lab)]

My Lords, attempting to compress all my criticisms of the Bill into the time allotted would be impossible; I am not alone in that situation, as other noble Lords have indicated. This debate has exposed—and I expect it will continue to expose—criticisms of the Bill’s intentions, methodology and internal incoherence, and its violation not only of international law but of civilised norms. I echo and supportively anticipate many of those criticisms.

As the UNCHR points out, the Bill

“would breach the UK’s obligations under the Refugee Convention, the 1954 Convention relating to the Status of Stateless Persons, the 1961 Convention for the Reduction of Statelessness and international human rights law”.

Given that the Home Secretary and the Minister have shared—as they are obliged to under the Human Rights Act—their personal view of the compatibility of the Bill with the European Convention on Human Rights, and that they are unable to certify the Bill as compatible with UN convention, I suspect that my noble friend Lord Foulkes of Cumnock’s suggestion yesterday that the Bill’s title would be proper if the adjective “illegal” were intended to qualify the noun “Bill” and not “migration” is accurate.

I am afraid that I can come to no other conclusion than that the Bill is entirely cynical in its intention. It is a clear case of attitudinising via legislative means. I do not believe that the Government have any objective for the Bill other than to create an environment in which they can adopt a certain posture that they think will help their future electoral success.

In the rest of my time, I shall focus on two of the more egregious measures in the Bill. That the Rwanda policy is immoral has been so widely discussed as to need no further explication from me, although I point out that the latest US State Department human rights report on Rwanda, released six weeks ago, is even more critical than the last. For example, it describes typical detention conditions in Rwanda as “harsh and life-threatening”, with regular, credible reports of “unlawful or arbitrary killings”.

I refer back to the debate we had on UK asylum and refugee policy. I asked the Minister the following question:

“How do our assessments of the robustness of judicial systems, the likelihood of arbitrary arrest and the propensity for agents of the state to use torture in Rwanda differ from that of the US State Department?”—[Official Report, 9/12/22; col. 403.]


I will never forget that, in summing up the debate, the Minister wilfully refused to answer in writing the questions that he could not get to in his speech. He has had five months’ notice of this question, and I ask him today to explain to your Lordships’ House why the US State Department has come to the conclusion it has about Rwanda and we have come to an entirely different one. What separate data do we have that they do not?

Not only is this policy immoral but, as the Refugee Council has pointed out, it threatens to embroil us in not only a series of legal challenges but immense logistical and practical endeavours. To put it politely, the Home Office’s record in recent years has not been so overwhelmingly positive that I would be confident in its ability to deal with these expeditiously and effectively. We currently have only one existing agreement with a third country for housing a small number of asylum seekers, with paragraph 16 of our MoU also binding us to take a small group of asylum seekers from Rwanda in return.

The Refugee Council estimates that:

“In the first three years of the legislation coming into effect … between 161,147 and 192,670 people will have had their asylum claims deemed inadmissible but not have been removed. They will be unable to have their asylum claims processed, unable to work and will be reliant on Home Office support and accommodation indefinitely … In total, between £8.7bn and £9.6bn will have been spent on detaining and accommodating people impacted by the bill in the first three years of its operation”.


These estimates are damning. This is not reforming our asylum system but replacing it with a state of limbo, at immense public expense.

Lastly, and briefly, I will raise Clause 53. Universal compliance with interim measures issued by the ECHR is critical. Last summer, the European Court of Human Rights, in an interim measure, spared two British citizens from being executed by Russia. In the case of Ukraine versus Russia, President Zelensky holds several interim measures against Russia to constrain the use of military force against civilians. They hold vital symbolic and practical weight, and this attempt to dilute their power for domestic political purposes is extraordinarily short-sighted.

In closing, I will mention the admonitory statements of the Home Secretary and the Secretary of State for Justice, and, much more importantly, the briefing on their behalf that emerged last night. They warned this House that to oppose this Bill was to frustrate the “will of the people”. On what basis has this numinous concept been determined? Yet again, we see legitimate scrutiny discredited by inflammatory rhetoric. We remember previous attempts at this, with judges described as “enemies of the people” during Brexit and the 2019 election being framed as a contest between the British populace and their own elected representatives. Last night’s statements are a tacit admission that there is no argument to be advanced in defence of this Bill but that it must simply be acceded to. We are today, in effect, being asked to abdicate our responsibilities. If the Bill is objectively to our benefit, what can it stand to lose from today’s proceedings?

13:30

[Baroness Ludford (LD)]

My Lords, it is an honour to follow the speech of the noble Lord, Lord Browne of Ladyton, with which I thoroughly agreed.

There is little mirth to be had on the grim subject of this shabby, illegal and immoral Bill, but I did allow myself a little smile this last weekend. The chasing of easy headlines through divisive, dehumanising and xenophobic rhetoric about invasions by migrants and their threat to “our” values did not pay the electoral dividend the Conservatives were hoping for, despite claims that they are “the will of the people”. In fact, the symbolic district of Dover delivered them a big rebuff when turfing Tories out of control in favour of Labour, which I congratulate.

We saw an example this weekend of how facile tough talking coupled with hasty headline-chasing legislation backfires. At least part of the blame for what went wrong with the Met lies with the Home Secretary for her rushed, illiberal, gesture politics legislation. If you wanted an example of how to unify a country and bring people together in harmony, you had to look at the Coronation and the Coronation concert. You certainly will not get it from the modern Conservative Party, and decent Tories are grasping that and not liking it.

The Government have not deigned to give us an impact assessment, but the Refugee Council forecasts that, after three years of people being refused consideration of their asylum claims, up to 200,000 of them could remain in this country due to the absence of return agreements. They will be part of a whole new class of destitute people that this Bill will knowingly create. They will be in limbo: legally and socially excluded, barred from making asylum claims but incapable of being deported, banned from working or claiming any normal benefits, excluded from any path to settlement or citizenship—in other words, an outcast underclass. That will hardly assist cohesion.

As to legal issues with this Bill, the noble and learned Lord, Lord Thomas of Cwmgiedd, said of the proposal to allow the Government to ignore an order from the Strasbourg court:

“Many people would say having the power to ignore a court order is something”


that,

“unless the circumstances were quite extraordinary … is a step a government should never take because it is symbolic of a breach of the rule of law”.

The legal commentator, Joshua Rozenberg, mused:

“Is the government’s new Illegal Migration Bill a bill to deal with illegal migration? Or is it a migration bill that we should regard as illegal? The lawyers who draft bills for government departments are bound by strict naming constraints, but I wouldn’t put it past them to have slipped an arcane joke into the short title”.


The fact is that the Bill drives a coach and horses through the UK’s domestic law and international legal obligations, including through trashing the separation of powers and obstructing recourse to independent judicial scrutiny. It undermines the rule of law in various ways, not least through some provisions of retrospective effect.

The Bill contravenes the refugee convention in penalising refugees, excluding most arrivals from the right to seek asylum and breaching the ban on refoulement. It fails to respect the UN conventions against statelessness and on the rights of the child. It removes protections for victims of trafficking and modern slavery, in breach of the European convention against trafficking, and protections against arbitrary, unnecessary and indefinite detention. It also undermines the universality of human rights, contravenes the Human Rights Act and risks breaching the European Convention on Human Rights.

In his recent letter to us, the Minister said of his inability to make a statement that the provisions of the Bill are compatible with convention rights:

“This does not mean that the provisions in the Bill are incompatible with the Convention rights. A section 19(1)(b) statement simply means we are unable to say decisively that this Bill is compatible with the ECHR … Indeed, the Government is satisfied that the provisions of the Bill are capable of being applied compatibly with those rights”.


He should have been a scriptwriter for Monty Python.

What will the Government tell next week’s Council of Europe summit of 46 Heads of State and Government, the first for 18 years, about their UK contribution to fighting threats to democracy, human rights and the rule of law, when they are actually committing such threats? Everyone sensible knows that solutions to the difficult and complex challenge of migration pressures are to be found not in cheap gestures, stunts and simplistic slogans but in international co-operation and investment in efficient Home Office administration. We could usefully seek to join Europol as well, to tackle the trafficking and smuggling gangs, which the Bill does nothing about.

As Financial Times commentator Gideon Rachman has written:

“Reducing refugee numbers in a humane and effective way requires a painstaking combination of diplomacy, law enforcement and targeted development. Deportations and walls make better headlines, but worse policy”.


Would that this Government were to take note of such wise counsel.

Finally, as to the rebukes of the noble Lords, Lord Forsyth and Lord Dobbs, neither of whom are now in their place, have no Tory Peers ever voted against a Bill at Second Reading? I look forward to finding out.

13:36

[Lord Alton of Liverpool (CB)]

My Lords, the Joint Committee on Human Rights, on which I serve, is required and mandated by Parliament to scrutinise every government Bill for its compatibility with human rights. How is it expected to do that if a Home Secretary fails to come to the committee to defend and explain a Bill that she has been unable to sign off as human rights-compliant? That is discourteous and worse.

By contrast, in 2015, and with consummate skill, Theresa May steered the landmark modern-day slavery and human trafficking legislation through Parliament, providing pre-legislative scrutiny and building bipartisan and bicameral consensus and support. Last week, with my noble and learned friend Lady Butler-Sloss and the noble Lord, Lord McColl of Dulwich, we spent an hour with Lady May and Sir Iain Duncan Smith. I hope that when the Minister replies, he will explain why their amendment on trafficking victims, alluded to by the noble Lord, Lord Forsyth, in his remarks, has not been accepted.

Let us be clear: the changes proposed in the Bill will not stop the boats, as modern slavery victims are just 6% of small boat arrivals. However, it will remove support and protection from many genuine victims, and will deter slavery victims exploited on British soil from coming forward, leaving them trapped in exploitation and making prosecuting criminal gangs even harder.

I have been a trustee of a charity that combats trafficking and yesterday chaired a session for key organisations, including the Salvation Army, which with partners have supported over 18,000 victims during the 11 years that it has held the Government’s modern slavery victim care contract. It points out that the Bill disapplies various protections and those who arrive irregularly and indirectly will be deemed a “threat to public order” and will therefore be disqualified from the existing legal protections.

The weight of evidence received by the Joint Committee on Human Rights, some of it taken in camera from victims, has been overwhelmingly clear that this would be in breach of the UK’s obligations under the Council of Europe’s convention against trafficking and Article 4 of the European Convention on Human Rights. Yesterday, at that meeting with the Salvation Army, I was told that traffickers will use the new law as a tool, and that it will not break the cycle of exploitation, only exacerbate it, adding to the trauma—to destitution, homelessness and mental illness, and to people living outside the law in precarious uncertainty. Paradoxically, we will empower traffickers and brothel owners and disempower the victims.

The JCHR also heard concerns that Clauses 2 to 5 will ultimately lead to the UK failing to play its part in the global system of refugee protection, a theme that has been mentioned so often in the debate so far. Vicky Tennant, UK representative to the United Nations refugee agency, told the committee that the Bill is

“a series of unilateral measures that are about pushing refugees away and pushing responsibility on to other countries, it will undermine the trust and regional co-operation needed to manage these movements”.

Within the last 24 hours, the UNHCR has said that it

“breaks the core UN Conventions that UNHCR is mandated to safeguard: the 1951 Refugee Convention and the 1954 Statelessness Convention”.

In addition to concerns for the victims of trafficking, there are five other areas that have raised red flags for the JCHR: first, the removal of protections for refugees and stateless persons; secondly, potential for indefinite and arbitrary detention; thirdly, due process and appeal rights being compromised; fourthly, concerns over interim measures; and fifthly, lack of protections for both accompanied and unaccompanied children—a point properly made by the noble Lord, Lord Dubs, whose amendment on children I seconded when it was considered and supported right across your Lordships’ House.

The JCHR heard that the Bill would not be compatible with the UK’s obligations under both the ECHR and the UN Convention on the Rights of the Child. Two experts said the provisions

“create risks of Article 5 breaches”,

while Welsh Women’s Aid said there would inevitably be

“an increase in the number of women and children exploited in hidden and organised illegal trade”.

As far as due process and appeal rights are concerned, listen to Freedom from Torture, which told us that:

“A person may be able to provide ‘reasonable’ or even ‘strong’ evidence, but not quite enough to be ‘compelling’. Very many refugees will not be able to surmount this evidential burden, putting them at risk of harm”.


The Bill also gives Ministers legislative permission to ignore interim measures indicated by the European Court of Human Rights and to breach various international and domestic legal obligations, and risks breaching others. Several witnesses told us that the Bill is so bad it is simply incapable of amendment, and that we should first undertake post-legislative scrutiny of the Nationality and Borders Act, which came into force only in January, before legislating further.

If it proves impossible to amend the Bill in the ways that many noble Lords have argued during this debate, we should have no hesitation in using our constitutional right to defeat it at Third Reading. I agree with others that it is our duty to consider the Bill in Committee and on Report.

Let me end. In 1938 the independent MP Eleanor Rathbone established the Parliamentary Committee on Refugees. In 1940, during a six-hour debate, when Europe faced the challenge of enormous numbers of displaced people, she argued that in addition to the humanitarian case there were hard-headed reasons for the UK to lead the international response. She said it is

“not only in the interests of humanity and of the refugees, but in the interests of security itself”.—[Official Report, Commons, 10/7/1940; col. 1212.]

Her speech, and its description of dog-whistle politics and the stigmatisation of refugees, bears careful study today.

13:43

Sitting suspended.

Illegal Migration Bill

2nd reading
Wednesday 10th May 2023 Lords Chamber

Second Reading (Continued)

15:49

[Lord Lamont of Lerwick (Con)]

My Lords, it is the right of every sovereign nation to control its borders. We in this country have a real problem with a complete breakdown of the UK’s ability to control its borders and to enforce its own laws. As the Minister said at the beginning of the debate, more than 45,000 people arrived in small boats last year. Many of those who crossed here were economic migrants—some from safe countries such as Albania—yet arrivals by boat accounted for almost half of those applying for asylum last year. We already have an accommodation problem, with 50,000 asylum seekers living in 400 hotels, costing £6 million a day. I am glad that the noble Lord, Lord Coaker, acknowledged that there is a problem and that it needs solving. Perhaps in the spirit of the Labour-Liberal alliance we now have, he will talk to his almost noble friend, the noble Lord, Lord Paddick, who said that this is a problem that is incapable of solution and that there was no point in trying.

Some say that we should just let illegal immigrants work here, but surely that would not work; it would simply increase the pull factor of the UK to those wanting to come here. Who gets to come to this country and in what numbers is a legitimate political question. All eyes are on small boats at the moment, but there is also the much larger question, numerically, about the extraordinary recent surge in legal immigration. Last year, there were nearly 1.1 million arrivals—a net migration figure of over 504,000. There is no economic case for mass migration on that scale. These numbers are not sustainable. Our housebuilding target of 300,00 a year, which has not yet been met, probably ought to be well over 400,000 or 450,000.

Noble Lords have talked about safe routes to asylum. Legal migration is more likely to be accepted generally if we manage to control illegal immigration. At the moment, we have a situation where it is often difficult to remove migrants whom the legal system has found have no right to be here. The Bill addresses that question —that is the question and problem we have.

The heart of the Bill is Clause 2 and the provisions that give the Government the right to remove those with no legal right to remain here. It makes an asylum claim for any individual here illegally inadmissible. It should not be forgotten that the aim of the Bill is to deter. If a robust system can be established, there will be fewer boats and less need for flights to Rwanda. The Bill has been described as a threat to the rule of law, but it should be remembered that, when the Government introduced their plan to remove illegal migrants to Rwanda, our courts considered the legalities of the plan, and all courts up to the Supreme Court refused to grant an injunction to a group of migrants to stop them being put on a plane. But then, at that moment, Strasbourg issued a rule 39 interim ruling, and that is why the Government have taken powers to disregard interim rulings from the ECHR.

I am sure that noble Lords will listen very carefully to the many distinguished lawyers in this House, especially the former Lord Chief Justice, the noble and learned Lord, Lord Thomas, but many legal experts—including Sir Geoffrey Cox and my noble friend Lord Howard—have said that only final rulings, not interim rulings, of the Strasbourg court are legally binding. Martin Howe KC has even gone so far as to say that the real threat to the rule of law comes not from the Government in the Bill but from Strasbourg exceeding its jurisdictional powers.

The Bill gives the Home Secretary broad discretion; it does not require the Home Secretary to ignore rule 39 interim measures. The Government have also said that they are engaged in constructive dialogue with the ECHR, which they intend to continue, on reforms to the process by which interim measures are considered.

I agree that there are other difficult issues in the Bill; I will mention only two. The first is the removal of unaccompanied children. I am sure that Ministers would rather not contemplate being in a situation where they have to deal with such a problem. It is difficult to imagine a more awkward issue. The Immigration Minister in the Commons said that this could happen

“only in the most exceptional circumstances”,—[Official Report, Commons, 26/4/23; col. 837.]

such as reuniting a family, but I am sure the House will wish to probe that in Committee.

The second issue relates to Clauses 21 to 28. These disapply elements of the protection against modern slavery. Again, the Immigration Minister referred to cases where individuals are, as he put it, considered a threat to public order or have claimed in bad faith to be victims of slavery. This was queried, but the Minister claimed plenty of evidence and undertook to provide it, and the Minister speaking here today quoted some statistics, which I am sure the House will wish to probe. He quoted a figure of 73% of illegal immigrants applying for asylum, but in fact I think that figure refers to those in detention, and we have been told by other experts that the figure of those who have come here illegally applying under the slavery provisions is only 6%, so I am sure the House will wish to probe that.

Politics is sometimes described as the art of the possible. Perhaps more accurately, it should be described as the art of choosing between the incredibly difficult and the unbelievably difficult, but we have to make hard choices; to govern is to choose. One problem with ever-expanding human rights is that one person’s rights may clash with those of another. The rights of the individual matter deeply, but the ability of the Government to act as the trustees of the rights of the individuals who make up this country also matters. We have an acute problem which needs solving. Let us do it in a humane, legal way, but let us not duck the difficult choices.

I hope that this House will not fill the Bill with so many loopholes, exemptions, exceptions and get-out clauses that it actually becomes unworkable. We have a problem to solve, it needs solving, and this Bill is part of the solution.

15:56

[Baroness Chakrabarti (Lab)]

My Lords, a refugee convention refugee can never—I repeat, never—be illegal. I have the unhappy duty of speaking as both the child of migrants and as a human rights lawyer. While the latter may be a cause for derision among senior members of the Government, I fail to see that it is any less noble than being a lawyer to the wealthy or an investment banker.

None of our political traditions commands a historical monopoly of virtue when it comes to the treatment of immigrants in general, or refugees and asylum seekers in particular. Low points have included: Home Office obstruction of safe passage for so many fleeing the Nazis; the racist treatment of the east African Asians in 1968; virginity testing of Hindu brides at Heathrow Airport in 1979; and, of course, the still unresolved Windrush scandal of more recent times. This is not to deny prouder moments, but to acknowledge our mixed record and the importance of legal protections for the most vulnerable people—or at least of not baking vulnerability and discrimination into our statutes for the sake of cheap headlines that tickle the base.

The politics of the Bill are a populist, divisive distraction from economic turmoil caused by mismanagement and greed. Increasingly, this is a desperate electoral strategy of culture war. Notwithstanding the inevitable cruelties that would be caused to even the most genuine refugees, this will not stop the boats. However, it is as a believer in the international rules-based order and the domestic rule of law that I have the gravest concerns. In its current form, the Illegal Migration Bill would live up to its name—assuming that the adjective describes the second noun. It would put this country, a country that was at the heart of negotiating the post-World War II international settlement, in violation of the ECHR of 1950, the 1961 Convention on the Reduction of Statelessness, the 1989 UN Convention on the Rights of the Child, the 2005 anti-trafficking convention and, perhaps most shamefully of all, given the events that led to its creation, the 1951 refugee convention and its protocol.

I do not criticise the Minister—an alternative “activist lawyer”—for making a Section 19(1)(b) statement that he cannot confirm ECHR compatibility. Such an honest position was always envisaged by the scheme of the Human Rights Act so as to facilitate parliamentary debate over whether, for example, in a state of emergency Parliament should be prepared to legislate contrary even to lawful derogation from the convention. However, I note that both the drafters of the human rights memorandum to the Bill and the Home Secretary, in the other place, adopted cake eating in the extreme with their confident assertions about the compatibility of the Bill while simultaneously ousting various aspects of the jurisdiction of both the Strasbourg and domestic courts.

The domestic duty to read legislation compatibly with rights is replaced with a duty to do the Government’s bidding, in a grotesque parody of the separation of powers. Interim relief, which is so vital in expulsion cases, will no longer bind the Government’s hands, even where either the European Court of Human Rights or UK courts believe that a person might be trafficked, tortured or killed pending a full and final hearing of their case. The provisions narrowing suspensive claims would appear to allow removal in potential breaches of rights to life and of protections against inhuman and degrading treatment in a number of cases.

There will be no bail for those caught in the wide net of this Bill for 28 days. There will be no judicial review of immigration detention decisions. All of this is in breach of the right against arbitrary detention so embedded in our common-law traditions. Further, in the absence of viable deals with safe third countries, people may be interned in legal limbo indefinitely. In addition, the Bill would apply retrospectively to people already here who have made a claim for asylum in good faith.

The core of the evil—that is not a word I use lightly —of this measure is the notion of punishing some of the most genuine refugees on account of the necessarily clandestine nature of their escape. This was not lost on the former Prime Minister and right honourable Member for Maidenhead in the other place, who was with us this morning. It was not lost on the UN High Commissioner for Refugees. It is not lost on me. Still, I cannot quite believe that our values have sunk to this.

16:02

[Baroness Janke (LD)]

My Lords, as the previous speaker has said, this Bill brings shame on our country. The UK was once one of the most compassionate countries, welcoming victims of oppression and violence, upholding human rights and championing the causes of the oppressed. The British public have shown their generosity in welcoming war victims.

The noble Baroness, Lady Stowell, said that there was public support for this Bill. But members of the public whom I have spoken to do not support the removal of protections for child imprisonment or the removal of rights for trafficked people in this Bill. She talked about equal treatment of genuine asylum seekers being the same as for imposters, but that is what is happening at the moment because so many claims have not been processed. Under this Bill, there would be no assessment; they would simply be imprisoned and moved somewhere else. So I think that, once the generous and fair-minded British public understand what this Bill contains, there will be no support for it from them.

As areas of conflict increase across the world, the numbers of people seeking sanctuary from violence and persecution are massively increasing. Yet the UK, claiming to be an influential global player on the world stage, is unwilling to take its share of responsibility for finding solutions to the worsening humanitarian plight of so many people fleeing conflict.

The Government are abdicating their international obligation to play a full part in worldwide efforts to address the growing numbers affected by war and violent persecution, failing to comply with long-standing international agreements and conventions. Worse still, as others have said, are the utterances of senior members of Government who are fuelling racial intolerance and painting a false picture of what is happening.

Ministers’ assertions that we are taking our fair share of asylum seekers and refugees can be seen to be untrue if we look at the performance of our European neighbours. When it comes to granting refugee status to asylum seekers, seven EU countries issued more positive decisions than the UK in 2021. These included Germany, with 59,000; France, with 33,000; Italy, with 21,000; Spain, with 20,000; Greece, with 16,000; Austria, with 12,000; compared with the UK, with 10,000. These are massive differences.

As the UNHCR says, the Bill all but extinguishes the right to asylum. To claim asylum, refugees have to be in the country where they are claiming asylum, but Clause 2 effectively removes this right, as any refugee entering the country under this Bill will not have the right to be assessed. There are no safe routes to the UK.

The noble Lord, Lord Howard, said that the problem would be worse if there were safe routes because people would go underground, but many people will go underground as a result of this Bill if it becomes law. So why are we not receiving information about safe routes from the Government at the same time as they are trying to enact this Bill?

The Bill does not, as Ministers say, protect trafficked people; it removes from them rights afforded to them by previous legislation. It means that, instead of being offered protection and support, as is the duty required by the Council of Europe Convention on Action Against Trafficking in Human Beings, a potential victim will face detention and arrangements for their removal will commence.

So far, as others have said, the only third country willing to receive asylum seekers from the UK is Rwanda. In light of the Government’s confrontational approach, might not other third countries be unwilling to co-operate with the UK?

The Bill requires that any illegal immigrants be detained until they can be removed. The UK does not have sufficient accommodation for people who are already here—as many noble Lords have said, this is being provided at great cost. How then are we going to find accommodation for the increased numbers that will result if this Bill is implemented?

The Children’s Commissioner has raised major concerns about the current quality of accommodation for keeping children safe and 200 children are currently missing from Home Office accommodation. It is clear that many children have urgent health needs which are not being met in existing accommodation, as well as severe mental health problems, having lost family and witnessed scenes of horrifying violence. More children, including unaccompanied minors, are now to be detained under the terms of this Bill and there is no doubt that on current performance this will be in horrifically substandard accommodation.

So, it is no surprise that I agree with my colleagues that this is an appalling Bill that should be prevented from reaching the statute book. I hope that other noble Lords of the same view will stand up and be counted this evening and join us to vote for the amendment moved by my noble friend Lord Paddick.

16:08

[Baroness Meacher (CB)]

My Lords, this Bill fails to respect our international obligations and will therefore undermine the reputation of this country and our influence across the world. For this reason and others, I believe this House has a moral obligation to prevent this Bill from reaching the statute book unless it is very severely amended.

The UN High Commissioner for Refugees makes the point that there are virtually no ways to claim refugee protection before arriving in the UK—with the obvious exception of people from Ukraine and Hong Kong. Anyone arriving without having already obtained refugee status will be regarded as arriving irregularly and will be locked up before being deported. This Bill therefore amounts to an asylum ban for victims from most unsafe countries.

Particularly shocking is the fact that these inhumane provisions apply even to unaccompanied children, who will be removed at the age of 18. To make matters worse, people will not be able to apply for immigration bail for the first 28 days, nor will they be able to obtain a judicial review regarding the lawfulness of their removal.

As others have said, the Bill drives a coach and horses through the Modern Slavery Act; we have to address this, along with many other issues. The idea behind the Bill is to deter people from coming to the UK in boats across the channel—but, as well as being inhumane, the Bill will not achieve this objective. The assumption is that people can be quickly returned to their own country. However, most people who come here as asylum seekers come from unsafe countries—Afghanistan, Syria, Iran, et cetera—and the Bill prohibits people from being returned to such countries. There are other countries, of course, defined as safe which imprison people who are non-believers simply because of their lack of faith. An obvious option would have been to remove asylum seekers to EU countries—safe countries they may have come through on their way to the UK—but the Brexit withdrawal agreement makes this impossible.

When the Government’s own statistics and research show that the deterrent model they have chosen does not work, can the Minister explain why they have failed to bring forward a Bill to tackle the business model of the people smugglers operating in the channel—an approach that would undoubtedly succeed in stopping the small boats and would, in fact, tackle the villains rather than the victims? The fact is that there are alternatives. In disliking this Bill, we are very clear that there are perfectly good alternatives.

What will be the cost to the UK of this policy? It will require a massive expansion of the detention estate—10,000-plus beds, according to the Refugee Council. The quality of those detention facilities will surely be appalling. The Home Office regards the approach used on the Greek islands of Chios, Lesvos and Samos as the right model for the UK’s response to asylum seekers, but Médecins Sans Frontières describes the accommodation in those facilities as “deplorable” and points to appalling suffering, exacerbated by the daily stresses and constant fears of the asylum seekers involved. Is this really the model that the UK Government wish to adopt? I do not think so. I fear that we have a Home Secretary who may be out of line with others.

Finally, I turn to the mental health consequences of the Bill. The people detained under it will have had a high prevalence of trafficking, torture and sexual and gender-based violence. The Royal College of Psychiatrists rightly points out that the Bill is likely to precipitate a significant deterioration of mental health problems in most cases. The consequences for children, with both mental and physical symptoms, are particularly distressing.

This Bill is cruel, immoral and unworkable. I call on the Government to accept the need for far-reaching amendments and, if necessary, withdraw the Bill wholesale at Third Reading.

16:12

[Lord Garnier (Con)]

My Lords, despite support in the other place, the Bill has come under a good deal of criticism, both in your Lordships’ House this afternoon and outside Parliament. If this House is not able to or will not offer that criticism but bends silently before the exhortations of the Home Secretary, we may as well pack up and go home. It seems to me that our constitutional duty is to warn, advise and seek to persuade the other place to think things through with care and in a less fevered atmosphere than was apparent when the Bill was debated in the other place. It is in Committee that we can look carefully at the Bill. With the greatest respect to him, I do not think that following the noble Lord, Lord Paddick, into the Division Lobby is the answer to this question.

The aims of the Bill are not in the least bit difficult to understand. They are to deter illegal entry into the United Kingdom; to break the business model of the people smugglers and save lives; promptly to remove those with no legal right to remain in the United Kingdom; and to make provision for setting an annual cap on the number of people to be admitted into the United Kingdom through safe and legal routes. I fully accept that all of those are legitimate policy aims, and in a pre-election period they are just the sort of policy aims that a Government who wish to remain in office through demonstrating their desire to protect their citizens from the expense of illegal immigration and from their having to see on their television screens images of thousands of people arriving in rubber dinghies, and who want to blame “the others” for failing to stop them before they set off, would espouse. However, while simultaneously claiming to be welcoming and compassionate, and portraying the United Kingdom as the victim of others’ failures, or of far-away political upheavals or moral ineptitude, is easy if somewhat lazy politics—and certainly not novel—it runs the risk of creating or encouraging a form of sectarianism.

In the context of the last presidential elections in the United States, sectarianism became a highly moralised political identity that saw the other side as contemptible. The moral component was fundamental. You believe that you are a member of a select group, and you fervently believe that only you know the moral truth and that the other people are hopelessly and irredeemably wrong. That is the tenor of the thinking we see across the American political divide nowadays. That is the way Donald Trump electioneers and how he describes the people who disagree with him.

This divisive political system has three main components. The first is what is known as “othering”—labelling these people as so different from us that they are almost incomprehensible. The second is called “aversion”—the idea that they are not just different but dislikeable. The third is “moralisation”, whereby they are morally bankrupt. Now sectarianism cuts both ways and moral rectitude does not belong only to one side of the argument. However, there are questions that need to be asked about whether, for example, it is acceptable to redefine one’s relationship to the law or to a long-standing convention on refugees, or to claim that judges who apply the laws enacted by Parliament—this Parliament—are “lefty lawyers”. Is it right to argue that what you think is in your immediate political interest is what is best for democracy? If the stakes are high enough, anything goes. To see where we may be heading, one has only to look at the clauses in the Bill relating to suspensive claims and serious harm; or at Clause 1(5), relating to the disapplication of Section 3 of the Human Rights Act; or at Clause 4, on the disregarding of certain claims; or at the Section 19(1)(b) statement on the face of the Bill. I have been described, I am sure, as many things, but no one I think could describe me as a “lefty lawyer”, and government by insult is not encouraging.

I am truly sorry that I have not been able to agree with my noble friend Lord Howard of Lympne, but I do suggest that we all study with some care the speech of the noble and learned Lord, Lord Etherton, given at the outset of our proceedings.

What is less easy to understand is how the Bill’s four aims are to be achieved in practice. I have no doubt that a Home Secretary could articulate in a persuasive and evidence-based manner how each of those aims can and will be met within the rule of law and in compliance with our existing treaty obligations, most obviously under the refugee convention and the European Convention on Human Rights. There may be both a political and legal case for this Bill and the measures it demands. I genuinely look forward to hearing it, because so far, I have not.

16:18

[Lord Davies of Brixton (Lab)]

My Lords, I am minded to vote in favour of the amendment and to oppose Second Reading of this disgraceful Bill. Other speakers have explained and will explain that the Bill is immoral and will cause much unnecessary pain and suffering, and it is far from obvious that it will achieve its stated objectives; but I am going to speak directly to the amendment and suggest reasons why it is right and necessary for this House to refuse to consider the Bill further.

No one doubts that the House of Commons has a democratic mandate and is entitled to pass whatever legislation it wishes. The issue here is the role of the second Chamber when presented with legislation that is so egregiously bad as this Bill.

The political reality is that there is no way that this Bill will or could be revised to make it better. It is intrinsically bad and, having read the debates that took place in the Commons, it is quite clear that the Government are opposed to any meaningful amendment.

Various threats have been made as to the consequences for this House if it refuses to pass this Bill, although today’s article in the Times is more measured, but we need to recognise the role in our constitution of the Parliament Acts. Any Government with a majority in the Commons can overrule this House, and if they think it is right to do so, they should do so. That does not require us to accept their proposals.

Earlier speakers have tried to suggest that for this House to refuse to consider a Bill is “unconstitutional”. Clearly that is nonsense; we have the constitutional right to refuse a Bill. I quite understand that noble Lords may not be greatly interested in my views on the matter. However, they may be swayed by the words of Sir Winston Churchill. I refer noble Lords to his speech in the Commons on 11 November 1947, when he was leader of His Majesty’s Opposition, speaking in the debate on the Second Reading of the Parliament Bill, which can be found in Hansard vol. 444, beginning at col. 203.

Sir Winston’s position on this matter is interesting, as in 1911 he was, in his own words, a “radical” and an active proponent of the legislation that limited the power of this House by restricting it to a two-year delay. Then, in 1947, he opposed Labour’s proposal to reduce the period of delay to one year. Much of his speech was devoted to setting out why two years was right and one year was too short, which, while interesting, need not concern us. There was also much political knockabout, although his comment that

“No Government has ever combined so passionate a lust for power with such incurable impotence in its exercise”


has contemporary relevance.

The burden of his speech, and what is relevant to us here today, is his forceful argument as to why and when, in accordance with our constitution, this House was entitled, even under an obligation, to refuse to consider a Bill, even when it had been passed by the Commons. The crucial point is that, as a great democrat, he argued the case for this House taking such action on the grounds of democracy. He said, in terms:

“The spirit of the Parliament Act, and the purpose of that Act, were to secure the intimate, effective and continuous influence of the will of the people upon the conduct and progress of their affairs”.


In other words, he argued that our power to delay should, when this House thought fit, be used in the interests of democracy. He asked:

“Is the party opposite really to be entitled to pass laws affecting the whole character of the country in the closing years of this Parliament without any appeal to the people who have the vote and who placed them where they are?”


In other words, our role is to make the Commons think again and, towards the end of a Parliament, make the Government seek a new mandate. His conclusion was:

“The object of the Parliament Act, and the spirit of that Act, were to give effect, not to spasmodic emotions of the electorate, but to the settled … will of the people”.—[Official Report, Commons, 11/11/1947; cols. 205, 204,214, 206.]


This Bill is clearly based on “spasmodic emotions” and we should, on the grounds set out in the amendment, use our constitutional powers to decline to give it a Second Reading.

16:24

[The Lord Bishop of Gloucester]

My Lords, it is a privilege to add my voice to this debate. I echo much of what has already been said, including by my friends the most reverend Primate the Archbishop of Canterbury and the right reverend Prelate the Bishop of Durham. I will focus my remarks on the impact of this Bill on women, including victims and survivors of sexual and gender-based violence—all of it set, as you might expect, within my belief that every person is created in the image of God. We are talking here about people with names, not faceless numbers.

I hear the Minister’s concerns about the statistics around modern slavery but this issue needs much more careful analysis, as the noble Lord, Lord Lamont, said. Other noble Lords have highlighted many of the issues around modern slavery. Surely it cannot be right that no one who arrives here by irregular means will be eligible to receive modern slavery support. As we have heard, this Bill proposes that victims of modern slavery will instead be subject to detention and removal. This seems wrong on so many levels, not least morally, but it will also be a substantial law enforcement issue. Why would anyone come forward as a victim of modern slavery and risk being sent to Rwanda? My right reverend friends the Bishops of London and Bristol will be following these issues with interest and concern.

There are many crossovers for victims and survivors of sexual and gender-based violence. For five years, the SEREDA Project at the University of Birmingham and across other international universities has been researching refugees’ experiences of displacement from the Middle East and north Africa to the point at which people seek refuge. These academics warn that this Bill will increase vulnerability and the risk of exploitation, and will unfairly punish survivors who have unknowingly come to Britain. Safe countries, even some of our closest neighbours, are not necessarily safe for a woman who has been sex trafficked to that country or abused by smugglers in-flight. She will want to put as much distance as possible between her and the perpetrators. There is nothing in this Bill to ensure that such victims will receive the support that they need in these countries to prevent the resumption of abuse.

If this Bill is enacted in its current form, Albania will be added to the list of safe countries from which people will never be accepted. There are questions there for me around gender disparity. If a large percentage of male asylum seekers from Albania are sent back but the vast majority of women are accepted at present, surely that implies that it may not be safe for them there.

I add my voice to those speaking against the indefinite detention of pregnant women. I strongly support the call from the noble Baroness, Lady Lister, for the 72-hour time limit to be reinstated. The impact of detention on this group may include considerable, extremely serious health repercussions, including for their unborn children, who may be harmed by the stress and trauma of detention.

Across all these points, I see a worrying failure to recognise the trauma experienced by victims. I will not say more at this point—so much has been said—but I hope that we will pick up on many of these issues in Committee, so that we ensure that we shape our legislation in a way that enables our country to be an appropriate place of sanctuary, not harm.

16:28

[Lord Lilley (Con)]

My Lords, this debate has focused largely on legal issues. I do not doubt the importance of such issues, not least those just raised by the right reverend Prelate, but I would take the lawyers more seriously if they recognised that there is a problem and suggested solutions rather than arguing as if neither law nor treaties nor their application need to change. Ultimately, the Government and Parliament of this country must be able to decide how many people, and for what reasons, are granted refuge in this country.

I had hoped that the lawyers would explain why British courts and administrators reject only 26% of initial asylum claims, whereas France rejects 75%, Germany rejects 55%, and both Sweden and Spain reject 71%—especially since, in addition, Britain goes on to accept a majority of those who appeal. If lawyers do not admit that our system is too credulous, why do they not criticise our EU neighbours for being too harsh? Does not this disparity explain why, as my noble friend Lord Forsyth pointed out, some people are willing to risk their lives to escape safe EU countries to claim asylum in the UK?

At the heart of this debate is a challenging moral and political question: to how many and to which categories of people should we offer refuge in this country? The most reverend Primate, in his great speech on his Motion to Take Note before Christmas, said that

“I make … absolutely clear and underline”

that Britain neither can nor should

“take everyone who flees such devastation”.—[Official Report, 9/12/22; col. 370.]

I was going to say that everyone agrees with him, and that everyone accepts that we cannot accept all those who would like to find refuge in this country, until I heard the noble Lord, Lord Paddick, state that we should not even attempt to limit the numbers, only handle the flow in a more orderly fashion.

[Lord Paddick (LD)]

I did not say that.

[Lord Lilley (Con)]

The noble Lord did say that. He can check Hansard or his notes. If he wishes to tell me what he did say, I will give way to him.

[Lord Paddick (LD)]

I am very grateful to the noble Lord. What I said was that we need to manage the flow of those seeking asylum into this country rather than close the gates and try to seal off the country from all people seeking asylum. I said that we should be managing the flow. I did not say that we should accept everyone.

[Lord Lilley (Con)]

The great difference between what the noble Lord actually said, which is that we should not even try but should just manage the flow, and what he has just said now, is too fine for me to appreciate. At least I have his original version.

[Lord Paddick (LD)]

My Lords—

[Lord Lilley (Con)]

The noble Lord has had his go. His original version at least had the merit of being breathtakingly honest. However, the implications of just “managing the flow” rather than trying to limit it, when this country already has a catastrophic housing problem, are obvious, and from a party that is notorious for opposing every new housing development across the country, the Lib Dem policy is breathtakingly hypocritical.

Many noble Lords have spoken of the importance of creating more safe and legal routes for immigrants. Presumably they will therefore welcome the clauses in the Bill, under which the Government and Parliament will agree an annual quota of people to be accepted under such routes. That raises several questions, the first being, “How many?” That question is contentious but is to be answered in the light of circumstances each year.

Secondly, who should be allowed in under such safe and legal routes? Clearly, we should prioritise the most vulnerable, as we do with the UNHCR for refugees from Syria, and those with the greatest right; for example, those who are related to people who are already here or whom we have obligations to, as with the Afghan translators. We can be pretty sure that there will be little overlap between these groups, who we think should have priority, and those currently arriving in small boats. The latter include the better-off members of their national communities, who can finance the tens of thousands of pounds to get here, the more audacious and usually young men who are willing to take risks, and those who have been, or expect to be, refused asylum in the EU.

Thirdly, from which countries should we enable people to come legally and safely? Presumably it is those coming directly, or as near as directly as possible, from the place where they suffered persecution. Surely it would not be to give priority to those who are already in safe countries; that is, our EU neighbours. Allowing illegal immigration across the channel to continue would mean that they will continue to jump the queue and absorb all the available accommodation in hotels, barges, barracks or otherwise, which will be needed for those coming on safe and secure routes.

Fourthly, how will we restrict those who will still want to come illegally by boats across the channel? As the noble Lord, Lord Howard of Lympne, pellucidly explained, unless we allow unlimited numbers to come by safe and legal routes, there will always be some who, having been refused legal access, will wish to come illegally by the boats. So far, none of those who accept that we cannot take everyone who wishes to come to this country has proposed any concrete alternative to the proposals in the Bill.

My question to those who condemn the Government’s plan as immoral is: why is it perfectly moral to pay the French to prevent people leaving the beaches of Calais but immoral to try to deter people from landing on the beaches of Dover? Both measures would help us save the lives of those who risk being drowned in the channel, and both leave migrants free to seek asylum in the EU if they do not wish to do so in Rwanda. I will not hold my breath while waiting for a convincing answer.

16:34

[Lord Cashman (Lab)]

My Lords, I will speak plainly. I believe the Bill to be a thoroughly reprehensible piece of legislation that would be more suited to a party of extremists than the party that saw one of its greatest leaders, Winston Churchill, among the architects of the Council of Europe, the European Court of Human Rights and the European Convention on Human Rights. How utterly ashamed I believe Churchill would be today of the Bill.

I am not alone in my concerns, and I am indebted to all organisations that have written to me and others about the Bill and the consequences for those seeking sanctuary and asylum: people who are among the most vulnerable, damaged, dehumanised and misrepresented —individuals who should command our support, understanding and compassion. But they are warned that they will instead be stripped of the most basic human rights by this Government, whom I call the Tufton Street mob. I am indebted particularly to Amnesty International for its briefing, as well as the Bar Council, the Royal Society of Psychiatrists, the British Red Cross and LGBT group Time to be Out.

I deeply regret the introduction of the Bill, which seeks to oust judicial control of executive powers, deny refugees their right to seek asylum in the United Kingdom, exclude victims from modern slavery protections, and strip some British children of their rights to British citizenship.

It plainly risks—and, I believe, seeks—conflict over the European Convention on Human Rights and the court. The Bill is a deliberate and carefully designed vehicle to put the UK on a collision course with the European Court of Human Rights, to further the ambition of the Tufton Street mob to whip up hatred of the court in support of the withdrawal of the United Kingdom from the European Convention on Human Rights. In that regard, the Bill is utterly cynical and an act of bad faith.

The Government argue in pursuit of a singular purpose, stated in Clause 1. It is

“to prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes”,

as the Bill describes them. By citing this purpose, Ministers show a remarkable disregard for people’s real lives, real-world events, this country’s international obligations concerning these matters, and even Ministers’ own policy as it relates to these issues. Sadly and reprehensibly, in promoting the Bill, this lack of respect for law, fact and people’s innate dignity has led to Ministers expressing themselves in terms that are indecent and racist, and they have quite rightly been criticised by members of their own party.

The Bill is plainly not compliant with international human rights law—no doubt something that this Government, the Tufton Street mob, are proud of— nor is it compliant with basic principles of legality and constitutionality. I believe that it is a blight on the reputation of the United Kingdom as a civilised, law-abiding, constitutionally sound and democratically accountable nation. It is my profound belief that Parliament is better than this vicious, far-right piece of legislation, and that the British people are better—a people known for compassion, understanding and basic human decency.

We will deal in greater detail with the brutal injustices of the Bill, but I will name just some. Several provisions, in effect, oust judicial oversight. Clauses 31 and 52 deny refugees their basic right to seek asylum and put minorities, such as LGBT people, at greater risk, as brilliantly expounded by the noble and learned Lord, Lord Etherton.

The Bill excludes victims from modern slavery protections; it can deprive British children of their citizenship rights, as I said before; and there are new powers to indefinitely detain pregnant women. Women for Refugee Women’s research has found that most women seeking asylum in the United Kingdom are survivors of rape and other forms of gender-based violence, including domestic violence, sexual exploitation, forced marriage and female genital mutilation, yet these women arriving through so-called unsafe and illegal routes will be detained and sent to so-called safe third countries.

As I read this, I find it unbelievable that I am doing so inside a British Parliament and that this Bill and its intentions originate from a British Government. How quickly we can be debased and reduced by those eager to misrepresent the most vulnerable as a threat to our culture and way of life, and as cannibalising our values, and to whip up public opinion against them. How reminiscent it is of the 1930s, and how I so agree with Mr Gary Lineker and his denunciation of the language used.

In conclusion, I paraphrase Shakespeare and a play that he co-wrote, “Sir Thomas More”. The strangers have made their way from Calais to Dover, and on to London. The citizens of London, whipped up by the mob, become unruly. Thomas More stands before them and someone in the crowd shouts: “Remove them!” He replies: “You bid that they be removed, the stranger with their children upon their back, their families at their side, their belongings at their feet. You bid that they be removed. Imagine you are the stranger, with your children upon your back, your family at your side, your belongings at your feet. Imagine you are the stranger and bid that they be removed and show your mountanish inhumanity”.

Such inhumanity is within the Illegal Migration Bill, and we should consign it to the dustbin of far-right politics.

16:41

[Lord Roberts of Llandudno (LD)]

The reason that some years ago I supported the Conservative-Liberal coalition was the pledge that the imprisonment and detention of children on immigration purposes would be abolished. Now, the possibility of that is to be reintroduced.

The Government will say that this is what the British people want. Thursday’s local government election, with over 1,000 Tory losses, shows that there is no great clamour for the sort of action proposed, which is aggressive and inhumane. The Home Secretary dreams of planes deporting refugees to Rwanda. I believe this is not a dream shared by the majority of the British people, who are more likely to dream as Martin Luther King did of justice and fairness for all people. Once again, not a single Tory councillor was elected in many of our larger cities—none in Liverpool, Manchester or Newcastle. You may say, “What about the places most affected by the people in small boats?” On the south coast, the Tories were down five councillors in Dover and more than that in Folkestone. The people do not want this.

The Coronation concert showed how much we appreciate the diversity of those from many different backgrounds. This Bill has no place in the law of the United Kingdom. I am certain that every concerned Peer in the House today will join me this evening in opposing this squalid Bill.

16:43

[Lord Kerr of Kinlochard (CB)]

My Lords, the only thing I really like about the Bill is the honesty of its title—it is indeed an illegal migration Bill. It bans even asking for asylum if you are coming from Khartoum, Tripoli, Tehran, Myanmar or Yemen because there is no regular, legal approved route from there. We are being asked to agree to a blatant repudiation of our commitments under the 1951 convention, as the UNCHR, the custodian of the convention, has confirmed. We are being asked to approve of indefinite detention for all such arrivals by decision of the Secretary of State, without legal oversight and with no appeal. The Secretary of State’s decisions cannot be questioned in any court or tribunal. That is astonishing, but that is what new paragraph 3A, to be inserted by Clause 12(4), says. When the Minister states in the Bill that he cannot say it is compatible with European convention rights, that is the truth but not the whole truth. The incompatibility is obvious.

That is not all. Like others, I struggle to see how this Bill can be squared with our promises under the Convention Relating to the Status of Stateless Persons 1954, the United Nations Convention on the Rights of the Child 1989, or the Council of Europe Convention on Action against Trafficking in Human Beings 2005, which only the Russians have not ratified. It is not just about small boats, although that is how it is being sold. It is about trucks, London airports, trains, victims of modern slavery, and students, businessmen or tourists from Khartoum or Tehran who when here chose to seek asylum. Their claims cannot be heard if this Bill passes; they have to be locked up sine die until the Secretary of State can find somewhere to send them. That is astonishing in my view.

I have two interests to declare. First, I was, until recently, a trustee of the Refugee Council. The Government have produced no impact assessment on the Bill but the Refugee Council has, and, as others in this debate have already mentioned, its verdict on its impracticability is damning. It puts the cost of detention over the first three years at some £9 billion. More importantly, it points out that it will not work: it will not crack the small boats problem. What might work would be for our Government to accept the repeated French offer to let us set up processing centres in France—and that is my answer to the very legitimate question asked by the noble Lord, Lord Forsyth of Drumlean.

I have a second interest to declare. For five years I headed the Diplomatic Service, which thought it was its duty—I am sure it still thinks it is its duty—in the national interest to speak up for the rules-based international system, which is now under such challenge from the likes of Trump and Putin. This Bill would disarm our diplomacy. When we remonstrate with rule-breakers, they would fling this back in our faces. Do as we say, not as we do is not a winning diplomatic gambit.

It is an honour to serve in this Parliament, and we must all do what we can to sustain its reputation. In almost 20 years here, I do not think I can recall a more disreputable Bill than this one. It victimises the vulnerable, and if we enact it, the country breaks its commitments and trashes its traditions. It takes perseverance to keep honour bright, and this House should ask the Government to think again. We should send the Bill back to the other place in a form which does not purport to legitimise illegality.

16:48

[Lord Bourne of Aberystwyth (Con)]

My Lords, I welcome the opportunity to speak in this debate, and it is a great pleasure to follow the noble Lord who, as always, spoke with such sense. He certainly knows what he is talking about, and we would do well to listen to what he said.

I look forward to this legislation being improved in your Lordships’ House—there is certainly scope for that. There are some very real concerns about this legislation. I do not doubt the need to control immigration, nor indeed do I doubt the need for a properly regulated system of asylum. However, it is a complex global issue. It does not follow that, because we have a problem, any action is appropriate, justified or to be welcomed. It is not. This Bill does not deal with the asylum backlog, nor does it do anything to bring to book traffickers, who are the real villains who should be centre stage in any system of governmental action. I question whether this legislation will have the deterrent effect that is argued for, and I look forward to hearing evidence of that.

It is legitimate to ask what we would do instead, and I will come on to some of the things that could be done. The noble Lord, Lord Kerr, has just talked about processing in France, which is a real way of tackling some of the problem.

At the centre of my concerns is the statement in the Bill made by the Home Secretary that in her view she is unable to make a statement that the provisions of the Illegal Migration Bill are compatible with the convention rights. That goes to the very centre of what makes us great as a nation: a belief in the rule of law. This is the post-war settlement coming back at us. Do we really want to ally with Trump and Putin? That is what we are doing if we turn our backs on the very fundamental problem that this is illegal. That statement is a concern, and I assume it concerns the Minister. I look forward to hearing more about how he thinks we are on the right side of the law here.

I would also appreciate it if something were to be said about the impact of this legislation. We are told, and I agree, that there is a problem and we need to do something about it, but we are entitled to ask what the costs of this measure would be. Part of the answer, apart from the processing, is more safe and legal routes. That does not mean we are giving way to massive inroads into the country, but it would take pressure off illegal, costly and hazardous routes.

I am concerned about the prevention of asylum for anyone entering the UK irregularly, because people will come in irregularly, particularly because we are closing down safe and legal routes. We are, as the refugee convention has made clear, in danger of extinguishing the right for refugees to seek refugee status here. Is that what we really want as a country?

I am concerned too at our turning our backs on the modern slavery legislation—the withdrawal of protections that we passed recently with such great pride, and in contravention of international law. Is that what we want to do as a country? I do not think we do. How does the withdrawal of the rights of modern slavery protection help our country?

I am concerned also about the rights of children. The treatment of children refugees is another massive area of concern, specifically a power given to the Secretary of State to deport child asylum seekers.

The thrust of this legislation should give us pause. We should be dealing with traffickers and providing protections from modern slavery and for children. We should uphold the principle of asylum, which needs to be restated.

I listened with great interest to the contribution from the most reverent Primate the Archbishop of Canterbury. He was right to say that he would be bringing forward proposals in Committee to deal with some of the concerns that exist about the convention and the need to update it, as well as things to be done at an international level. I hope the Government will engage with him. We should take that offer positively so that we can improve this legislation, because there are massive improvements that need to be made.

16:53

[Lord Griffiths of Burry Port (Lab)]

My Lords, 87 people originally signed up to speak in this debate, and I was one of them. There are slightly fewer now, but I know that if 187 had signed up I would still have wanted to add my name to those speaking on this issue, since its importance can hardly be exaggerated.

I share with noble Lords the fact that I am part of the delegation from the British Parliament to the Council of Europe, and I sit on its migration committee. I never thought that saying that would leave me feeling as if I should declare it as a conflict of interest, and yet today, faced with this legislation, I feel that the Council of Europe’s position is conflictual with the spirit of it.

Two or three years ago, I was asked to write a report to celebrate and commemorate the 70th anniversary of the 1951 convention. I consulted widely with people from the UNHCR and other United Nations agencies, as well as NGO bodies such as Amnesty International and others, and from countries around Europe. I produced my report; it was unanimously accepted by the migration committee and then went to a plenary session of the Council of Europe in Rome, where again it was accepted unanimously. Even at that time, it was possible to see and recognise—and to note in the report—that the arrangements of the 1951 convention were under pressure in various places, and in some countries were being eroded. But at that time it was possible to stand up, as a United Kingdom spokesperson, and feel that we could contribute positively to the need to do the necessary forms and tidying-up.

At the heart of the report are three basic principles: that when a refugee seeks refuge in this country, or any country, there should be, first, no penalisation; secondly, no discrimination; thirdly, no refoulement—no pushback. It would not be difficult, in the time remaining to me, to show how in this and previous legislation every one of those core principles has been either threatened or undermined, or quite simply pushed to the side. It is time for us to look again at our commitments. I am not a lawyer; I cannot do this from a legal point of view. But I believe that I and every Member of your Lordships’ House can understand those three principles without any difficulty, yet all of them are under threat and even worse.

Since I presented that report, the Ukraine war has happened. When I look at the considerably more than one million refugees in Poland and Germany as a consequence of that war, I almost feel ashamed at hearing the way that we cavil about the small number who are coming here. When the convention was drawn up, and largely at the hands of British lawyers in its present form, there followed its coming into being a meeting of what were called—quaintly—plenipotentiaries. Again, there was a significant British presence among them. They were clear that while the convention spelled out contractual arrangements to deal with the migration that everybody was having to look at, there should be generosity on the part of those furthest from the problems to help shoulder the burdens of those nearest them—the front-line states. Honestly, if that was true then, I cannot believe it is not true now.

As an accident of geography, we have a channel separating us from mainland Europe. We are already insured against the sorts of figures that I have mentioned for Germany and Poland. We pride ourselves on the number of people that we are taking in from Ukraine; it is nothing compared with what others are taking. Indeed, most international migration is dealt with by neighbouring countries absorbing the problem and taking people in. Turkey, a country for which I have mixed feelings, is doing heroic work in this regard.

We have not had pre-legislative scrutiny for the Bill, but only in February one of the Select Committees of this House produced its report, All Families Matter: An Inquiry into Family Migration. Clearly in there is a direct criticism of the direction of travel of our House and our Parliament on these issues now. Treat that as a piece of pre-legislative scrutiny and observe its strictures, and we would be far better off.

I must close. They say a Methodist minister preaches for at least 25 minutes, but I do my best. In the Times this morning and all over the radio we had the headline: “Don’t defy will of the people on migration bill, Peers warned”. The will of the people was expressed last Thursday, and it was not favourable to the people putting this Bill forward now. I suggest that it is time we recognise how radically this proposed piece of legislation eats into the spirit and values of the country we should all be proud to belong to.

17:00

[Lord Wolfson of Tredegar (Con)]

My Lords, it is a pleasure to follow the noble Lord, Lord Griffiths of Burry Port, and not only because we share a family background in south Wales. Given my legal background, I am going to focus on one issue. It is a legal issue, but an important one highlighted by my noble friend the Minister in opening this debate.

Last year the Government attempted to remove a small number of people to Rwanda. The group applied to court for an injunction to prevent their removal until the full challenge to the removal order had been adjudicated. That claim for interim relief failed three times. The Government won in the High Court, won again in the Court of Appeal and won for a third time in the Supreme Court.

However, the claimants applied to the European Court of Human Rights in Strasbourg. On 14 June last year a single, unidentified judge—we do not know who it was because these things are done anonymously —of the Strasbourg court indicated interim measures under rule 39 of that court’s rules to the effect that the claimants should not be removed from the UK until all the UK litigation had concluded.

The Government acted consistently with that rule 39 interim measure indicated by the Strasbourg court and did not remove the claimants. The amendment in the name of the noble Lord, Lord Paddick, charges that in this Bill the Government seek to act contrary to the rule of law and their obligations under international law. So far as the Strasbourg court and rule 39 are concerned—my focus today—that is wrong for at least three reasons. The first reason is grounded in international law, the second reason is grounded in domestic law and the third reason goes to what the Bill actually says.

First, on international law, when we signed up to the European Convention on Human Rights, we signed up to a written document that set out our obligations clearly. One of those obligations is in Article 46(1). We have to abide by a final judgment given by the Strasbourg court against the UK. But an indication under rule 39 is not a final judgement against the UK. Indeed, as the Strasbourg court recognises—see the rule 39 factsheet on its own website—in the convention itself, there is no jurisdiction to grant interim measures. That is not surprising. In 1949 a draft version of the convention included a power to grant provisional measures, but that did not find its way into the final text. As with Sherlock Holmes’s nocturnal dog that did not bark, sometimes it is the clause which is not in the contract which is in fact the most important. Rule 39 indications therefore rest on the court’s own decision in 2005 by a majority that it has jurisdiction to make them—overturning, I might add, the same court’s more forthright previous decisions that it did not have jurisdiction to make them.

The first point is that the Strasbourg court’s jurisdiction to grant rule 39 indications is itself questionable. That, no doubt, is why they are called indications and not injunctions or orders. I invite my noble friend the Minister to confirm that, although historically the UK has taken on board the indications of the Strasbourg court under rule 39—no doubt for good political reasons—that is not because we have a treaty obligation to do so. We do not.

Secondly, not abiding by a rule 39 indication is not a breach of our domestic law. The Strasbourg court attempts to ground rule 39 indications in Article 34 of the convention, but the Human Rights Act, which incorporates the convention into our domestic law, deliberately excluded Article 34. To pick up a point made by Professor Ekins KC in his recent Policy Exchange paper, that is important. A civil servant is bound by Acts of Parliament, and it is no answer for a civil servant to refuse to do something ordered by a Minister, on the authority of this Parliament, because it might, or might arguably, involve a breach of international law. We are a dualist state, and international treaties have no application in domestic law, unless and until they are given effect by this Parliament.

Thirdly and finally, the Bill does not require a Minister to refuse to give effect to a rule 39 indication, although I accept that the default position is that the duty to remove takes priority. The Bill gives a Minister discretion that is to be exercised personally. As my noble friend the Minister pointed out, Clause 53(5) sets out specific points to which the Minister should have regard. These include whether the UK was given an opportunity to make submissions before, or after, the rule 39 indication was made; the “form” of the measure; and its “likely duration”. These are all pretty basic points, you might think, but they have to be made because they are currently not part of the procedures of the Strasbourg court. Were it to adopt the fairly basic procedures that we have in this jurisdiction surrounding the making of injunctions, a large part of the problem would go away. Therefore, the solution is likely to be, at least in part, in a reform of the procedures of the Strasbourg court. I noted with interest that Robert Jenrick indicated that the Government now have a renewed and focused engagement with that court, which I welcome very much.

However, for the reasons I stated, the Bill’s provisions on interim measures engender no breach of the rule of law, no failure to meet our international commitments and no requirement for Ministers to ignore the decisions of judges. For those reasons, if the noble Lord, Lord Paddick, pushes his amendment to a vote, I urge the House to reject it.

17:07

[Lord Howarth of Newport (Lab) [V]]

My Lords, on Saturday morning, I watched the Coronation. The ceremony affirmed that we are an inclusive and humane country that aspires to be a community in which people of all religions and ethnicities live harmoniously together. The King swore to govern the people with justice and mercy. The right reverend Prelate the Bishop of London read, from St Luke’s Gospel, of how Christ came

“to heal the brokenhearted … to set at liberty them that are bruised”.

The ceremony was uplifting and made me proud to be British. On Saturday afternoon, I turned to considering what I might say about the Illegal Migration Bill. It was depressing and made me ashamed of our Government.

The Bill is merciless. It removes modern slavery protections and deprives people fleeing suffering and persecution of any realistic possibility of refuge in our country. The Home Secretary prated of our “proud and extensive tradition” of offering refuge, even as she introduced legislation that repudiates that tradition. Under pressure from MPs, the Government have said that new safe and legal routes for asylum seekers will be opened; we will see what they offer. They have made it clear that they will not set up a scheme for people fleeing Sudan, and they are making it as difficult as possible even for Sudanese entitled to family reunion in the UK. The Bill as it is creates a Kafkaesque regime under which asylum seekers who enter the UK illegally are immediately to be deported and never again permitted to apply for asylum here, while there are no safe and legal routes for entry for almost all asylum seekers.

The Bill is particularly cruel towards children. Asylum seekers under the age of 18 will be separated from their parents; they will be detained until they are 18 and then deported. During their detention, they will be subject to a special regime administered by the Home Office. The Home Office does not have the skills to look after children. Too much of what we know about the character of the Home Office and its contractors tells us that their so-called care of these vulnerable children will be brutal.

We have been shocked by reports of the squalid and demoralising conditions in which asylum seekers are forced to exist: in seedy hotels, with filthy food, in enforced idleness and, on occasion, besieged by racist mobs. The prospect the Bill provides is of traumatised, frightened people warehoused in putative detention centres for far longer than the 28 days envisaged, while official incompetence perpetuates their limbo. If the Government succeed in deporting these poor people, it will most likely be to Rwanda, a country with a terrible history of racial strife and where human rights are not respected. Only this Government could describe Rwanda as a safe country.

The Prime Minister is obsessed with “stopping the boats”. Presumably, this is a dead cat tactic to distract attention from the Government’s failure to turn the tide of net migration running at half a million a year. He calculates that it will make his party popular among red wall voters, readers of red top papers and people who have been given to understand by the Home Secretary that the arrival of asylum seekers in small boats is an “invasion”. The stratagem did not seem to work last Thursday in the local elections.

I remind the proponents of this legislation that Mrs Thatcher used to say that, in politics, you have a choice: you can appeal to the better part of human nature or the worse. She was no softy, but she did not practise cruelty out of a cynical notion of electoral expediency. She would have understood that the policy will not work at any level. The asylum seekers will not be deterred from getting into the boats, because they will not know what our law is, and the people traffickers will continue to take their money and shove them out to sea.

True leadership would remind us that we have a duty of compassion and help to people thus broken-hearted and bruised. It would also explain that, historically, our country has been greatly enriched by immigration, that we now need an influx of young, enterprising, resilient people to eke out the demographic imbalance of our ageing population, and that we should therefore invest in the asset that asylum seekers are. On that basis, a leader can decently accept that both the pace and amount of immigration must be controlled and go on to acknowledge that there are indeed problems with the operation of the European Court of Human Rights and with the open-ended commitment of the UN Convention on Refugees, framed in very different circumstances in 1951. The way to address these problems is not to breach international law or, in effect, to secede but to engage in serious negotiations to achieve reform.

I am ashamed, too, of the Government’s attitude to justice; the Bill reprises their familiar contempt for the courts and their resentment of judicial review. In this legislation, the Home Secretary is seeking to make human rights claims inadmissible, to remove the practical possibility of appeal, and to curtail the oversight of our domestic courts and the European Court of Human Rights. If we consider the brazen statement by the Home Secretary that she cannot certify that the Bill is compatible with the European Convention on Human Rights, together with the obvious breaches in the Bill of the UN Convention on Refugees and the UN Convention on the Rights of the Child, it is clear that the Government disdain the rule of law. The Bill is disgusting and demeans us all.

17:13

[Baroness Sheehan (LD)]

My Lords, it is a pleasure to follow the noble Lord, Lord Howarth of Newport. I will address the Minister’s introduction to the Bill, when he stated that, if the Bill is to be effective as a deterrent, the extreme measures in it are necessary. So the Bill is, very clearly, the Government’s response to address their often-stated, firmly-held belief that, in the argument of pull versus push factors in the reasons for migration, the pull factor is most relevant. In short, the Government believe that people risk life and limb, of themselves and their families, and get into flimsy boats to the UK without serviceable life jackets because the pull factors of life in the UK are irresistible.

However, this argument is deeply flawed. I say that that because every study that has ever been carried out on the subject clearly shows that, while the argument holds some truth when applied to voluntary migration, it utterly falls apart when applied to those who are escaping the unimaginable horror of conflict, famine and persecution. The Government’s own research shows this but, inexplicably, this research is no longer available online. In November 2021, the Guardian reported that the then Home Office Minister, Chris Philp, argued that accepting asylum seekers

“creates a pull factor where migrants are incentivised to undertake dangerous and illegal journeys”,

but the Home Office refused to release the report that that statement was based on. In response to this refusal to publish the evidence, a Médecins Sans Frontières spokesperson said

“The reality is that ‘pull factors’ are a myth - people who are fleeing persecution or conflict don’t need any further incentive to look for safety. It is hard to see why the government would refuse to share evidence that supports its plans - the only conclusion to draw is that they know their arguments don’t stand up”.


In fact, previous Home Office research into asylum seekers’ decision-making appears to undermine the pull factor argument for harsher policies, saying that asylum seekers

“are guided more by agents, the presence or absence of family and friends, language, and perceived cultural affinities than by scrutiny of asylum policies or rational evaluation of the welfare benefits on offer”.

The link to this report appears to have been taken down. Will the Minister look into this? In fact, it would be informative if the Government would publish all reports and advice, including legal advice, on which the Bill was put together, as requested also by my noble friend Lord German.

What we do know, however, from sector analysis, partly based, in fact, on the Home Office’s own data, is that more than two-thirds of people who cross the channel in small boats are judged to be genuine refugees and, on appeal, are allowed to remain—contradicting a government claim that 70% of small boats arrivals

“are not genuine asylum seekers”.

A compassionate Government would put in place genuine safe and legal routes for these genuine asylum seekers, and then seek to break the business model of the people smugglers. The Bill seeks to do neither.

I spent a lot of time in the Calais Jungle before it was demolished and burned to the ground in 2016. The people I met there, mostly from Sudan, Afghanistan and Syria, had no other thought than to get to the UK. They had overcome unbelievable odds to reach the English Channel and they would not be defeated now that they were within sight of its shores. Their logic was simple. The smugglers were the ones they trusted, because they wanted to help them in their aim; the French were their enemy, because they wanted to stop them, often quite brutally; Britain, in contrast, they believed, wanted them. What were they supposed to believe, when each DfID—as was, now FCDO—sack, box or pallet is emblazoned with a union jack and the words “UK Aid”, ensuring all recipients knew whom to thank for their charity?

They were right in one respect: the British people are overwhelmingly supportive of refugees. The Bill is not representative of British people. Britain is a country that has shown, time and again, that it welcomes refugees. If the Government truly want to do the right thing, they will work with international bodies, such as the IOM and the UNHCR, to support decent refugee camps in the affected regions, camps that offer the dignity of work, education and health facilities. They should make a serious effort to address the real cause of the misery of people forced into such desperate actions, the push factors behind the mass movement of people today—push factors such as desertification, flooding and extreme weather events the like of which we have never seen before. They should invest urgently in mitigation and adaptation measures against the ravages of climate change.

17:20

[Lord Carlile of Berriew (CB)]

My Lords, I declare a specific interest as a member and former chair of the Cambridge Woolf Institute’s independent Commission on the Integration of Refugees. I resigned as chair to be able fully to participate in the proceedings on this Bill.

I have listened with great care to all the speeches we have heard so far. I particularly agree with those of my noble and learned friend Lord Etherton and the noble and learned Lord, Lord Garnier. I recognise that the numbers of unprocessed asylum seekers and refugees speak for themselves. There should not be so many; there should not be a backlog of the kind that we have. I agree with the Government to this extent: we need changes in asylum policy, management and possibly the law. However, I agree with others that the changes to the law proposed in this Bill are neither necessary nor proportionate.

I listened with great care to the interesting and persuasive speech by the noble Lord, Lord Wolfson, on rule 39 of the European Convention on Human Rights. That should be changed not through this Bill but through discussion in the Council of Europe, which is the appropriate organisation. Knowing his skill as an advocate, I can imagine him persuading courts that the British Government have been right in many cases to stick to decisions given under rule 39 because of the precedent they have set in doing so. This is not the place to deal with it.

I was concerned to hear some highly respected Peers whom I admire enormously suggesting that, because the House of Commons has passed this Bill, we are obliged to do so. Indeed, it led me during the short adjournment to play the game of cross-examining ChatGPT to see whether I could get it to agree with any of those propositions. I am sorry to say to those Peers that I failed; ChatGPT has consistently come up with something like, “The Members of the House of Lords are appointed to provide scrutiny and review of legislation passed by the House of Commons. They also act as a consultative body, providing expertise in various fields to assist in decision-making. Additionally, they may participate in debates and question government Ministers on policy issues”. Perhaps even former Cabinet Ministers should turn to ChatGPT before they decide to join your Lordships’ House. We have the duty, never mind the right, to do just what ChatGPT has insisted to me that we should.

Surely it is an imperative of sound public policy that it should enjoy an unimpeachable ethical and legal foundation. Where on the moral ground does this stand? The noble Lord, Lord German, reminded us of the title page of this Bill. If he or I in moving an amendment in Committee said, “I am unable to say that my amendment is compatible with convention rights but nevertheless I wish the Committee to proceed with it”—exactly the words on the front page of the Bill—the Minister, whoever it was, would shout me down for the effrontery of trying to break the law during a debate. But that is what the Government are doing. They should not get away with it. They are deliberately breaking the law.

How big is the problem we are dealing with? Has it been exaggerated by political rhetoric? My noble friend Lord Green, perhaps an unlikely source, reminded us that asylum seekers are a small proportion of immigrants, and the noble Baroness, Lady Janke, referred in her excellent speech to the figures in other countries, such as France, Germany, Italy and, above all, the United States. Why do we have this problem? Has it come upon us secretly in the night? Of course not; it is the result of years of failures by the Government to deal with the predictable and to reform the processing of refugees within existing law. To reform the law, they want to break the law—a most extraordinary proposition, particularly to the revising Chamber. Surely breaking the law should be the last resort.

We should not flatter totalitarians by imitating their addictions. I think we should have a Committee stage on this Bill, during which we will show the Government how this work can be achieved much more empirically and efficiently. I hope to be able to play a part in doing so.

17:25

[Baroness Sugg (Con)]

My Lords, illegal small boats crossing the channel see desperate people putting their own lives, and those of their families, at risk, and profit criminal organisations. It is clear from all contributions to this debate that our immigration and asylum system needs significant review. I acknowledge that the Government are attempting to address some of these problems in this Bill, and that it is an incredibly complex situation.

In order for the measures in this Bill to have a chance of success, there are two fundamental issues to be addressed. The first issue is the unacceptable backlog of immigration and asylum claims. There are many reasons to regret this—the human cost for those claiming asylum and for the local authorities and communities trying to cope with long and unjustifiable waiting times, and the spiralling economic cost to the public purse and the impact this is having on our international work, as aid funding is diverted. Dealing with the backlog is essential, both so that this long delay does not act as a pull factor and to free up capacity at local and national level to provide sanctuary to those most in genuine need. Can my noble friend the Minister provide any update on what progress has been made towards the Prime Minister’s pledge to clear the backlog by the end of this year?

The second fundamental issue is that of safe and legal routes. Of course we cannot and should not take in all of those who wish to come to the UK, but we can and should continue to play our part in helping some of the world’s most vulnerable people. I am sure my noble friend the Minister will point to our generous schemes for Ukraine and Hong Kong, and indeed they are to be commended, but we must not forget about the rest of the world. Here, our recent record is not so impressive. Last year, only 1,185 people were resettled in the UK under the UNHCR global resettlement scheme; that includes the Afghan citizens resettlement scheme, which has resettled only 22 people in the UK. In his opening remarks my noble friend used these examples and others of existing safe and legal routes, but the ones he listed do not work and are not sufficient.

The Government have made some progress on this issue in the other place, thanks to Tim Loughton MP and others, though I hope to hear more about how the mechanisms will work as the Bill progresses. I agree that we need practical and thought-through plans, but without clearer ambitions and proper support for local authorities I worry that we will end up doing less than we can and should do.

I acknowledge that safe and legal routes will not stop the demand for illegal boat crossings, but that does not make them irrelevant to this Bill. We must not be in a situation where, because of this Bill, we are closing our borders without opening proper safe and legal routes. I look forward to discussing improvements to the Bill to ensure that these routes function appropriately.

I hope that during the passage of this Bill we can make progress on the detention of children and pregnant women. As we have heard, the Bill removes the prevention of routine detention of children and their families which has been Government policy since 2011 and was enshrined in law in the Immigration Act 2014. That was an achievement that had cross-party support and should be left as it is.

I hope the Government will seriously consider deleting from this Bill the power for the Secretary of State to remove an unaccompanied child. I appreciate that the Government have made some amendments on child detention, again thanks in no small part to Tim Loughton MP. I am grateful to my noble friend the Minister for confirming that details on detention time limits for children will be set out during the passage of the Bill. I hope that this will be a direct replacement of the 24-hour limit that was put in place by the Immigration Act 2014. Can my noble friend the Minister say if we will also see the details of the circumstances under which unaccompanied children may be detained, and the progress on how and where the Government plan to accommodate those children once identified?

As we have heard from the noble Baroness, Lady Lister, and the right reverend Prelate the Bishop of Gloucester, since 2016 there has been a 72-hour time limit on the detention of pregnant women. This ended the practice of detention for weeks, and sometimes months, which caused huge harm to women and their unborn babies. This Bill removes that protection. Will my noble friend consider amendments to retain it?

Finally, can my noble friend the Minister say whether any progress has been made on the consideration of arguments made in the other place by Theresa May MP and others on exempting victims of modern slavery? I understand the need to ensure that the legislation is not used to make false claims by those crossing in small boats, but we must ensure that actual victims who are being exploited here in the UK are able to report this abuse without fear of deportation.

Finally finally, as I have a little extra time, my noble friend will be well aware of the concerns from many eminent Members of your Lordships’ House, the UNHCR and many others that, as the Bill stands, it would breach the UK’s obligations under international refugee law. I hope that during the passage of the Bill the Government will be able to reassure noble Lords that it does not breach international law or international obligations, including the European Convention on Human Rights. That is not a position we should be in.

17:30

[Baroness Whitaker (Lab)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Sugg, and I agree with a very great deal of what she said. I simply emphasise again some particularly disturbing elements of the Bill, declaring an interest as an advisory board member of the British Institute of Human Rights. The word “illegal” does indeed characterise it. Even the Home Secretary considers that it “may be incompatible” with the Human Rights Act. It also contravenes an astonishing number of legal instruments we are party to, as well as our own laws. To instance the most egregious, the United Nations High Commissioner for Refugees describes

“a clear breach of the Refugee Convention”

in the disqualifying nature of the mode of arrival, as my noble friend Lord Dubs noted.

As a former trustee of UNICEF UK, I note that the UN Convention on the Rights of the Child’s concept of the “best interests of children”, incorporated into our law, is so drastically qualified as to be undermined by Clauses 2, 3, 4, 21, 22 and 31. The common-law right of access to justice and its reflection in the European Convention on Human Rights provisions for a fair trial is impaired in numerous ways in the Bill, not least with the power of removal and prohibition of ever applying for asylum or even entering the UK. The undermining of the Modern Slavery Act in Clause 21 arguably means that a trafficked person can either go to the authorities and be removed or stay with the trafficker and let the abuse continue. The Bill is even retrospective in its application, which is another departure from a principle of justice.

What has prompted this extraordinary and unprecedented break with tradition and the rule of law, which we usually see as a conservative principle? The Prime Minister cites the small boats crossing the channel. But, of course, the Bill’s reach goes far beyond those to any arrival by so-called irregular means, whether or not a safe legal route is available, which there is not, apart from in the case of Afghanistan, to a degree, Syria, Ukraine and Hong Kong. I ask the Minister—he is not in his place, but I hope that somebody is noting this—what the legal route is for people fleeing well-grounded fears of persecution in Iran, Eritrea or Sudan.

My noble friends Lord Dubs, Lord Rooker and Lord Browne of Ladyton referred to humanist refugees. How can the Government describe Nigeria as safe for a humanist refugee when the Nigerian Government maintain the death penalty for blasphemy—along with 10 other countries on the Bill’s “safe country” list in Schedule 1—and when they have sentenced the president of the country’s humanist association to 24 years in prison?

This law’s apparent departure from conservatism has not escaped several Conservative Members of the other place. They may be thinking of their 2019 manifesto, which said:

“We will continue to grant asylum … to refugees fleeing persecution”.


My noble friend Lord Coaker, in his stirring speech, cited former Prime Minister Theresa May and former Attorney-General Sir Geoffrey Cox KC suggesting that Parliament was being asked to approve a deliberate breach of our obligations under the European Convention on Human Rights. Outside Parliament, the Children’s Commissioner, appointed by this Government, said:

“My worry is it will make traffickers even bolder”.


Yet again, undemocratically wide powers are given to the Executive, in eight clauses by my reckoning, some of which amount to arbitrary power. Surely the real abuse in our dealing with asylum is the horrific backlog in clearing applications, which are anyway very many fewer than in comparable western countries. This is itself, arguably, a denial of rights—and it is so incompetently managed.

The laws that this Bill seeks to overthrow were not made to add bureaucracy. They were hammered out by the governments and peoples of the world to shape how we deal with crises without losing essential values. Those values, of fairness in the application of law, of recognition of people’s essential needs and of our common humanity, are not the ones expressed by this Bill. This Government should not assume that they share the values of the British people. I am not sure that they even share mainstream Conservative values. What does the noble Lord the Minister think?

Finally, the Bill is at odds, as it stands, with practical sense. Practical ways to deal with the quest of refugees for safety would include safe legal routes, as so many noble Lords have said, thus undermining recourse to people smugglers, and competent processes to deal with applications in a timely fashion. Surely we are capable of that.

17:36

[Baroness Brinton (LD) [V]]

My Lords, it is always a pleasure to follow the noble Baroness, Lady Whitaker. I will focus today on how this Bill will affect some of the health and medical decisions relating to asylum seekers. I thank the many organisations that have provided briefings.

Given the worrying nature of the Section 4 support under this Bill, can the Minister assure your Lordships’ House that basic but proper healthcare will be provided to prevent a repetition of last autumn, when Suella Braverman stopped the dispersal of asylum seekers from the Manston and Jet Foil centres? The Minister will remember well that, as they became overcrowded and diphtheria and scabies spread rapidly, it became clear that there were not adequate health resources—until there was a major crisis and a public scandal.

This should not have been a surprise. The Home Secretary was warned of this months earlier in the Chief Inspector of Prisons’ unannounced inspection report, which said:

“Governance of health care processes was weak … The care pathway lacked coordination or clinical leadership and there were no policies, protocols or governance of clinical standards.”


Can the Minister assure your Lordships’ House that this will never happen again?

As highlighted by other speakers, including the right reverend Prelate the Bishop of Gloucester, this Bill is also severely problematic for pregnant refugees. The previous Government’s 72-hour time limit on detention of pregnant women not only protected them and their unborn babies but resulted in the number of pregnant women in detention falling dramatically. This Bill would remove that limit and offer no exemption for those who are pregnant. Doctors and healthcare staff are horrified. There is also a real concern that the Bill in its current form is likely to increase the number of pregnant women in the UK who are charged for their maternity care, and we know that that impacts on maternal and foetal health. Doctors are also very concerned that offshoring—whether Rwanda or barges—is disruptive and possibly dangerous for women’s access to safe antenatal and postnatal care.

To turn now to the health of children, it is well documented that children seeking asylum are likely to face the worst childhood experiences possible, including physical and sexual violence, persecution, torture, xploitation, separation from parents and even witnessing parental death. In the Lancet, experts in child and adolescent health said:

“Rather than supporting these children, the UK’s new migration policies could cause further harm. The Illegal Migration Bill will violate the rights of children seeking asylum, undermine the Children Act, create safeguarding risks, and exacerbate the toxic stress experienced by children seeking asylum who arrive in the UK by irregular routes. As a signatory of the UN Convention on the Rights of the Child, the UK risks reneging on its commitment.”


On mental health, Dr Adrian James, the President of the Royal College of Psychiatrists, says that

“this new legislation will have potentially devastating consequences for the mental health of those seeking asylum in the UK. Many of these people will have experienced significant trauma in the countries from which they have fled.”

He goes on to say that not only is the Bill incompatible with the 1951 refugee convention but it

“is not compatible with the fundamental medical principle of doing no harm and we therefore consider it to be unethical.”

Earlier, the noble Lord, Lord Dobbs, talked of a teenage asylum seeker with some soft stubble, and Clause 56 on age assessments proposes that biological tests be carried out to assess age. Last year, the then Home Secretary, Priti Patel, convened a committee of experts to assess whether biological tests, including X-rays, could confirm whether someone was 18 or under. The resulting report from the expert committee warned that there was

“no infallible method for either biological or social-worker-led age assessment that will provide a perfect match to chronological age”.

This was confirmed by the president of the Royal College of Paediatrics and Child Health, who said:

“Paediatricians have said time and time again that age assessment by examination and X-rays is imprecise and unethical. Scientific evidence shows that pubertal assessment and bone age assessment are unreliable indicators of age and therefore cannot be used … I think it is highly questionable whether consent can even be freely given in these types of situations”.


Who will decide this highly contentious medical matter, and why are the Government not following the advice of their own expert committee, which believes that it does not and cannot work?

This Bill is not just morally unacceptable, although it is. It does not deal with traffickers and smugglers. Is the Minister serious that the Bill will stop them? It does not speed up the Home Office process of assessment of applications, which is urgent and long overdue. It does not create safe and legal routes, but it clearly breaches the 1951 convention. Our Government should be ashamed. Doctors tell us that it is unethical and unworkable. This Bill is inhuman and a danger to those who are fleeing for their lives. It is not how our country has responded to refugees for hundreds of years, and it should not progress. I will support my noble friend’s amendment tonight.

17:42

[Lord Sandhurst (Con)]

My Lords, these are unprecedented times. Last year, we had more than 40,000 illegal immigrants arriving in small boats. This year, the numbers will undoubtedly be greater. We cannot stand by and do nothing. It is not fair on those who seek to come here lawfully; it is not fair on the local authorities which have to accommodate people who have no homes to which to go. If we do not adopt some form of firm deterrence, the numbers will magnify. Those coming pay money to smugglers which is then recycled in organised crime. That chain has to be broken.

We all have sympathy for the circumstances which many leave, but that does not justify jumping the queue or pushing this country beyond its practical limits, especially when, in many cases, they come from safe countries. We owe duties of care to those who come here lawfully and to our own citizens.

First, I suggest that the Government accelerate forcefully the rate at which they process asylum claims. The rate at which it is done is lamentable and painfully slow. That is a practical step which has nothing to do with the Bill.

The Government are none the less right to act. Let me address just a few of the concerns raised. First, there is the question of treaty obligations under the European Convention on Human Rights. I refer, of course, to Rule 39 interim orders. It cannot be that the Strasbourg court should grant an interim order of indefinite duration without hearing from the British Government either first or at least soon after as to why such an order is inappropriate. That is contrary to how we do things in our jurisdiction under common law, contrary to our traditions and contrary to fairness. An affected party should be heard either before an order is made or, in a case of urgency, at least as soon as practicable thereafter, and that is a lamentable gap. Importantly, following on from that, the Bill does not oblige the Minister to ignore the interim order, but it will give him or her the option. Nor, as we have heard from my noble friend Lord Wolfson of Tredegar, will that make the Minister in breach of international law. Fortunately, we have also heard that the Government are engaged in constructive dialogue with the Strasbourg court on reforms to the process, so I hope this will be resolved, but we should not be afraid of that provision in the Bill.

Next, I turn to modern slavery. I ask the Government to look again at the amendment advanced in another place by the right honourable Members for Maidenhead and for Chingford and Woodford Green. In particular, those who are already here must not be trapped in true slavery; they must not be trapped underground and abused by criminals and others.

Lastly, I address safe and legal routes. Global safe and legal routes are available for people from any country, and some 50,000 people have come here via those safe routes since 2015. Country-specific safe and legal routes—the schemes for Afghanistan, Ukraine, Hong Kong and Syria—have together provided for some 430,000 people in the same period. The Government must work to expand that network. Only when numbers moderate, however—and I am talking here of the asylum seekers whom the Bill addresses—can we treat new arrivals with the welcome which we would wish. We just have too many to cope with.

To conclude, the Bill addresses complex and difficult problems. This House must not run away from working to solve them, and I am afraid that too many speeches I have heard today point to the difficulties which we face and some of the legal problems which the Bill raises but do not provide constructive solutions. This Bill is the way forward, but no doubt it can be improved. While we examine it carefully, we must not wreck it. The problems are too great and too important to be left untouched. We cannot go on as we are; this Bill must go forward.

17:47

[Baroness Jones of Moulsecoomb (GP)]

My Lords, this is a Government of divide and rule. Although they have not had many successes over the past few months, they have been moderately successful in that. They attack the leftie lawyers and judges who uphold the law, and they attack environmentalists for their common-sense demands of ensuring a safe, secure future for planet and people. Above all, they attack the immigrants, the foreigners, because they hope it will win them votes. I am afraid it does not, and I should have thought, judging from the local election results last week, the Government would know that their policies are not popular any more.

This Bill is one of the worst in a constant stream, a slurry, of bad Bills, and it really needs to go under. I will be voting for the fatal amendment. I understand where Labour is coming from with its idea about improving it, but if we push it back today, it cannot come back for 13 months, which is worth doing because, who knows, this Government could be out of power by then, and Labour would obviously not bring in anything like this.

There are four huge problems, which I will outline. First, the Bill breaks the law. It is not just that this Government are out to break the Geneva convention and the UN’s Universal Declaration of Human Rights, to both of which Great Britain was a founding signatory; it is not just that the Government are trashing a British tradition of welcoming those fleeing war, terror and persecution but it is the ecstatic glee with which the Home Secretary watches the building of barracks in Rwanda and dreams of locking up those who have committed the crime of being desperate and vulnerable.

Theresa May pointed out that we would be encouraging crimes. She said that

“we are shutting the door on victims who are being trafficked into slavery here in the UK”.—[Official Report, Commons, 13/3/23; col 593.]

The UNHCR has commented that is “profoundly concerned” by what the UK Government are doing and:

“This would be a clear breach of the Refugee Convention and would undermine a longstanding, humanitarian tradition of which the British people are rightly proud”.


So it breaks laws, international and domestic—so much for the party of law and order.

Secondly, let us put aside for a moment the humanitarian considerations in the Bill, even though the Bill is cruel, inhumane and just plain nasty, and will inflict pain and suffering on thousands of people. Let us be practical. The Bill will not work. The whole thing is dubious in the way it will be operated. Do the Government seriously think that they are going to deport hundreds and thousands of people without protest and opposition? It just will not happen.

The former head of the British Army, General Sir Richard Dannatt—the noble Lord, Lord Dannatt—has attacked the Government’s plan to send migrants to Rwanda, saying that Rwanda is still living under the “shadow of genocide”. He was in Rwanda as Chief of the General Staff in 2009 and sits on the All-Party Parliamentary Group on War Crimes, which looks into those who participated in the Rwandan genocide. He has argued that it is

“unwise to send people from all over the world to a nation still recovering from the political violence that ravaged it in the 1990s”.

That sounds like a disorganised country to me; it certainly does not sound safe. Perhaps the Minister could explain his criteria for a safe country. I would argue that, when you face opposition from someone who is a pillar of the establishment, you have a problem.

I am sure that the Government have done their sums on this—including on detention, accommodation, flights, payments to other countries and policing protests —to me, it sounds extremely expensive. I would like to know what the cost is per person if all this works out.

Thirdly, the Bill is the opposite of what the UK needs. These asylum seekers could be a drain on resources—but only if your country is not short of a million workers, which we are. These immigrants are a burden only if you do not let them work and pay taxes. Do they cause longer queues for the NHS in hospitals and GP surgeries? No. In fact, these people seeking a new life are part of the solution to the NHS waiting lists. Dr Waheed Arian, an NHS medic and himself a child refugee and trauma survivor, says:

“It’s immigration that’s keeping the NHS just about alive”.


The Government have fooled some people into thinking that we are full up and that too many resources would be used by asylum seekers but the pressure on our NHS, our schools, our public services and our asylum system is coming from deliberate underfunding and careless privatisation by the Conservative Government. We have an ageing population and not enough young people coming through to pay our pensions or keep the economy functioning. We need immigration.

Fourthly, the Bill breaks our democratic system. This Government try constantly to avoid parliamentary scrutiny of their measures, both with this Bill and with others. They subvert democracy to make it easier to enact laws that would be deeply unpopular, giving power to Ministers when they should really be held to account by Parliament. We have had this argument many times in the past few years, with more and more skeleton Bills coming through that allow Ministers incredible freedom to decide for us all.

The BMA has said that it

“supports the development of a single, fair, humane and effective refugee system, in keeping with our obligations under international humanitarian and human rights law, including rights to necessary and appropriate health care irrespective of an individual’s route into the UK”.

Before the Minister asks whether we Greens have an alternative, let me say this: well, yes, of course we do. We have a fair and humane refugee and asylum policy, which is the result of a long period of research and is fully costed—possibly unlike the Government’s scheme. Noble Lords should remember that Greens are actually very good on finance and the economy because we have so little money and we spend it extremely wisely.

In short, the Bill is not the solution to any problem. It is impractical, expensive, cruel and undemocratic, with criminal tendencies. It will not work. I suggest that the Government have a rethink.

17:53

[Baroness Helic (Con)]

My Lords, I should perhaps declare an interest as someone who has experience of fleeing their home and country of origin.

I share my noble friend the Minister’s desire to see a fair, safe and controlled immigration and asylum system. I am grateful to him for speaking to me about the Bill. However, I do not believe, I am afraid, that the Bill is likely to be successful in its stated goals or is moral at its core.

I have three particular concerns: on modern slavery; on the rule of law; and on our international standing and commitments. First, modern slavery is an area where this party and this Government have led the way in the past. As other noble Lords have already warned, the provision to remove modern slavery protections for migrants is deeply worrying. Our former Prime Minister, Theresa May, who delivered much of our modern slavery legislation, noted that, as it stands, the Bill

“will consign victims to remaining in slavery”

and

“will give the slave drivers and traffickers another weapon to hold people in … slavery and exploitation”.—[Official Report, Commons, 26/4/23; col. 809.]

It will remove protections from the very people most at risk of being trafficked and force them underground, preventing them from coming forward to report. Rather than providing a deterrent, it would make it harder to identify and prosecute people traffickers who bring people into the United Kingdom illegally.

Secondly, on the rule of law, I am concerned by the limits that the Bill places on judicial oversight, both domestic and international. I am alarmed by any measure that gives the Government unchecked power to detain—including children, reversing a measure implemented by the coalition Government—and deems human rights claims inadmissible in courts. Restricting the oversight and appeal role of the British courts is a worrying precedent. Threatening to ignore judgments of the European Court of Human Rights breaches our international obligations and undermines an important institution that was created by British lawyers in the aftermath of the atrocities of the Second World War and which has been at the forefront of efforts to uphold the rule of law across Europe, including in relation to Russia.

The UN Refugee Agency has been clear that by, in effect, banning asylum claims in the United Kingdom and removing all safeguards on refoulement, the Bill breaches the UK’s international legal obligations under the refugee convention, the 1954 Convention Relating to the Status of Stateless Persons, the 1961 Convention on the Reduction of Statelessness and international human rights law, and would significantly undermine the international refugee protection system. It is also worth stressing that the Bill, building on the Nationality and Borders Act, does not only prevent people who arrive on small boats accessing the asylum system; it prevents people who arrive by perfectly safe methods—even those who come with a visa—from claiming asylum. In practice, it closes down the UK’s asylum system.

This feeds directly into my third point, which is about the effect of the Bill on our international commitments and international co-operation. Two months ago, the Integrated Review Refresh 2023 noted that the United Kingdom

“has a higher interest in an open and stable international order … based on respect for the UN Charter and international law”.

It recognised that this

“creates the optimum conditions in which the UK can secure its interests”

and

“helps us deal with challenges like migration”.

Undermining the jurisdiction of international courts and ignoring our international legal commitments does not serve our interests. The only way to tackle global, transnational challenges such as immigration is through international law, co-operation and shared responsibility. Leading a race to the bottom where we all try to offload our obligations on to others will not help, bearing in mind that 74% of all refugees worldwide are hosted by low- and middle-income countries with far fewer resources than our nation.

In March, the Home Secretary said that

“there are 100 million people around the world who could qualify for protection under our current laws. Let us be clear: they are coming here”.—[Official Report, Commons, 7/3/23; col. 152.]

She must be aware that more than half of that population are internally displaced people who have not left their country of origin. Of the 34 million refugees globally, three-quarters are hosted by neighbouring countries. When the alternative is torture, death or starvation, refugees will seek to cross whatever obstacles are placed in front of them. If we want to reduce the pressure on our borders, we need to put more energy into diplomacy, international partnership and co-operation to address the conflicts and other root causes that are forcing people to flee.

Just over a year ago, I led a debate calling for increased support for Ukrainian refugees. I said:

“No one wants to become a refugee or to leave their home; it is a journey of fear, uncertainty, peril and loss”.—[Official Report, 6/4/22; col. GC 295.]


I reflected on the extraordinary support that I received 30 years ago and which I saw being extended by people across the United Kingdom to Ukrainian refugees. I hoped that we could take the lessons learned from our compassionate response to Ukraine. Instead, we face an outright ban on asylum. For most refugees, safe and legal pathways to the United Kingdom do not exist.

We should seek to build an asylum and immigration system based on the rule of law and dignity, of sustainable systems which could be replicated globally. His Majesty’s Government should always defend international law, which makes us all safer, including the right to asylum. We should create the long-promised safe routes for refugees, address the asylum backlog so that decisions are made quickly and firmly but fairly and not arbitrarily, and strengthen international co-operation to reduce the push factors, from climate change to insecurity, which drive people to make perilous journeys in search of safety. That is how we will end the dangerous channel crossings.

[Lord Davies of Gower (Con)]

My Lords, I suggest that the debate be now adjourned until 7 pm.

Higher Education (Freedom of Speech) Bill

Consideration of Commons amendments
Wednesday 10th May 2023 Lords Chamber

Commons Amendment

18:00

Motion A

Moved by

[Earl Howe]

That this House do not insist on its Amendment 10E to which the Commons have disagreed and do agree with the Commons in their Amendment 10F in lieu.

10F: Page 6, line 27, at end insert—
“(2) In subsection (1), “loss” means loss of any kind (pecuniary or non-pecuniary).
(3) A person may bring proceedings under subsection (1) only if—
(a) the person has brought a complaint relating to the same subject matter as the proceedings under a relevant complaints scheme, and
(b) a decision has been made under that scheme as to the extent to which the complaint was justified.
(4) Each of the following is a “relevant complaints scheme”—
(a) the scheme provided by virtue of Schedule 6A (the free speech complaints scheme), and
(b) the scheme for the review of qualifying complaints (within the meaning of section 12 of the Higher Education Act 2004) that is provided by the designated operator (within the meaning of section 13(5)(b) of that Act).
(5) Subsection (3) does not apply where the civil proceedings under subsection (1) are for an injunction only.”

[Earl Howe (Con)]

My Lords, we return to consider the Higher Education (Freedom of Speech) Bill for what I hope will be the final time. I thank noble Lords once again for the insightful debates that we have had on this important Bill, which is designed to ensure that the higher education sector in England is protected from the chilling effects of cancel culture which have been taking hold on campuses and in other areas of our society.

As noble Lords will recall, the statutory tort has generated some animated debate in this House. I am glad that we have now all agreed that this crucial measure should remain part of the Bill, though the final wording remains for consideration. On 2 May, the other place accepted this House’s Amendments 10B, 10C and 10D, which noble Lords voted to include in the Bill on 21 March. Mirroring Amendment 10E and building on these amendments, the Government tabled further amendments which seek to satisfy both Houses as well as academics and advocates of free of speech. These are what are now before us to consider.

The proposed new subsection (2) deals with an issue that we have discussed in this House before, in response to an amendment tabled by the noble and learned Lord, Lord Etherton. I said on Report that loss

“is not limited to pecuniary loss and could include damage to reputation, for example”.—[Official Report, 7/12/22; col. 207]

This amendment simply makes this point clear in the Bill. Proposed new subsections (3) and (4) mirror this House’s Amendment 10E, and (5) adds a helpful nuance to our already agreed position, that civil proceedings should be a last resort once the complaints schemes of the Office for Students or the Office of the Independent Adjudicator for Higher Education have been exhausted.

Some Members of the other place expressed concern that the Bill, as returned to them from this House, would prevent individuals from seeking an injunction where swift action is required to rectify a breach of the specified freedom of speech duties. For example, if a student is expelled from their course by a higher education provider because of a freedom of speech issue, this amendment would mean that the court could make an order requiring the provider to let the student back on the course immediately, thereby avoiding the need for the individual to put their life on hold and delay pursuing their studies, which would otherwise ensue.

In a case such as this, a recommendation made by the OfS or the OIA may simply come too late to avoid such damage. We believe that such cases are likely to be rare. Seeking an injunction is financially costly. Injunctions are a discretionary remedy and the courts do not grant them easily. We are clear that the overwhelming majority of complaints that allege a breach of the freedom of speech duties will proceed, as has always been envisaged, via the schemes that are operated by the OfS and the OIA. I hope that noble Lords will therefore accept the amendments from the other place, so that this Bill can proceed to Royal Assent. I beg to move.

[Baroness Lawlor (Con)]

My Lords, I seek some clarification of the new subsection (3)(b) proposed in Amendment 10F, which provides:

“A person may bring proceedings under subsection (1) only if … a decision has been made under that scheme as to the extent to which the complaint was justified”.


I seek clarification that an institution cannot delay the proceedings of decision-making indefinitely, because some institutions have quite a number of funds at their disposal and quite good administrative back-up, whereas an academic making a complaint and taking a tort action may be alone and without the same back-up. I hope that there is some provision for a time limit on an institution reaching a decision.

[Baroness Thornton (Lab)]

My Lords, I thank the Minister for his introduction of the government amendment in lieu and Amendment 10F.

When the Bill left this House with the amendments, led by the amendment tabled by the noble Lord, Lord Willetts, which was supported from these Benches, it was the Government’s own amendment at an earlier stage, aiming to mitigate the risk of legal action, and that civil proceedings should be the last resort, upon which we all agreed. Since then, the Government have amended the clause in question. The Minister explained why the Government have felt that it was necessary to do that. However, the amendment may create a perverse incentive for claimants to bypass the schemes created in the Bill in search of an injunction, including in anticipation of a breach, and it cannot possibly be the intention for this additional amendment, added in the Commons, to open doors to unintended consequences. I would like the Minister’s clarification on this because it seems that this amendment at best muddies the waters, and it might be dangerous. I would like his reassurance on that matter.

[Lord Grabiner (CB)]

My Lords, when this Bill left your Lordships’ House, it seemed that through the amendment tabled by the noble Lord, Lord Willetts, we had achieved a reasonable and workable compromise. Sensibly, the Government had accepted as axiomatic the principle that the person complaining that their freedom of speech had been unlawfully interfered with would first have to exhaust the regulatory complaints procedure before being permitted to commence civil court proceedings. The key amendment that we are now presented with will, I am afraid, blow away that compromise. These amendments will positively encourage civil court proceedings. For practical purposes they abandon the priority point, to the extent that the complaining party need not complete the regulatory process before commencing injunction proceedings. Indeed, the complainant would be entitled to ignore the regulator altogether and proceed directly to the court and seek an injunction.

I should make that criticism good by reference to the wording that has been presented to us. First, there is now an extended definition of “loss” which means loss of any kind, pecuniary or non-pecuniary. Through our previous debates, it has become obvious that a typical complainant would be hard pressed to show even nominal pecuniary loss resulting from a breach of the new duties imposed by the Bill. That is one of the reasons for the original objection to Clause 4 and why breaches of these duties should be dealt with by the Office for Students as the regulator and not by the courts.

The introduction of the concept of non-pecuniary loss suggests damages for emotional, mental or psychological distress. Again, however described, this is unlikely to produce significant damages figures, but express reference to it in the statute will be an encouragement to suitably motivated claimants to use the civil courts against universities, colleges and student unions. By itself, that would be tolerable, so long as the priority position were left in place.

Secondly, the troubling aspect of the amendments is in government Amendment 10F, to which reference has already been made, and in particular proposed subsection (5), which would displace the priority principle and expressly give the claimant the entitlement immediately to sue in court for an injunction. In my view, the claimant need not even bother to invoke the regulatory process. The claimant would be free to ignore the regulator and go straight to court. That is why I suggest that the sensible compromise previously achieved would be blown away if the Bill in this form became law.

For the record, I should make three further points. I will make them very briefly. First, our universities, colleges and student unions should not be subjected unnecessarily to the expense and unpleasant burden of court proceedings when we have an experienced statutory regulator in place. Secondly, many noble Lords—I am one of them—believe that ill-motivated troublemakers will be encouraged to invoke these provisions. We should not be encouraging divisive litigation or inappropriate use of the already clogged-up court lists.

Thirdly, the important purpose of the Bill is to encourage and improve the state of free speech in our universities and colleges. All sensible people support this excellent objective. That said, if the Bill in this form becomes law, universities, colleges and student unions would be well advised to make sure that no controversial speaker is ever invited to address the students: why would they take the risk? As a result, and ironically, freedom of speech will be undermined and not enhanced, and we will never be able to measure the extent of that damage.

I did not want my whinge about Clause 4 to be left stuck in my craw, but I also recognise that there is no appetite for more ping-pong on the Bill.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I am very glad to be here, to hopefully see the Higher Education (Freedom of Speech) Bill fly through at last and become law. I am also pleased to see that some attempt has been made to restore some teeth to this important legislation. It is true that it is not the full tort that some of us argued for—indeed, the very remedy the Government themselves initially suggested was necessary to deal with the ever-growing problem of cancel culture on university campuses—but at least those who have their free speech rights impinged on can secure a low-cost injunction in a county court. That would restore some of the speaker events and debates that have been blocked—effectively censored—rather than having to rely on the hugely expensive judicial review in the High Court as the only option, or the internal methods that people have talked about but about which I am more dubious.

I also welcome the amendment’s expansion of the definition of “loss” beyond simply financial loss. Of course, loss of one’s income or of costs incurred organising an event should be subject to compensation, but, as has been said, the real loss is so often reputational: that horrendous label of “bigot” that hangs around and is hard to shake off.

18:15

I recommend that everyone should read Steven Greer’s new book, Falsely Accused of Islamophobia: My Struggle Against Academic Cancellation. Professor Greer, a former professor at the University of Bristol, had his 36-year blemish-free teaching career totally upended in 2021 when a small group of students accused him of ridiculing Islam and mocking the Koran in his course on Islam, China and the Far East. The complaint was baseless and he was totally exonerated after an official investigation, but, in his telling, the university failed to adequately defend him or academic freedom. The investigation dragged on for five months. The process was used as a punishment, in a way—so we do need the remedies. Worse, his module was withdrawn when he returned to work, fuelling the idea that, somehow, he really was Islamophobic. He felt that his reputation was tarnished—although he is now working as a research director with a progressive Muslim Imam in Bristol, so there is a happy story there.

This example urges me to stress to the Minister that it is imperative that this Government—indeed any Government—work with cancelled students and academics in drawing up the Bill’s suggested statutory code for complaints scheme and much improving it. I also hope that the soon-to-be-appointed free speech champion might initiate a call for evidence so that we might assess which issues are prone to cancellation and the scale of the problem that often goes on behind the scenes, behind the traditional no-platform headlines.

Only today, a student from St John’s College, Cambridge, Charlie Bentley-Astor, contacted me because a film showing that she had organised of a documentary, “Birthgap—Childless World”, had been cancelled. A campaign by certain student activists and Varsity magazine objected to the film’s director, Stephen Shaw—who has flown over from the US to speak at the event on Friday—because, shock horror, he appeared on a Jordan Peterson podcast. But that is all grist to the mill. Ms Bentley-Astor defended her opponents’ right to protest outside the film—because, thankfully, some students are liberal and believe in civil liberties. However, due to the mere threat of a demonstration, and despite the film organisers creating a detailed risk assessment and organising stewards, the college has now called off the film, using the familiar formula that the event would be too disruptive and it is thinking of the safety of the attendees. Therefore, I think that the threat of civil action, of something harder, is sometimes necessary.

In that instance, I also urge the Government to make this legislation a real living instrument of free speech, not a box-ticking exercise for university managers. I credit the noble Lord, Lord Mendoza, provost at Oriel, for recently hosting a Living Freedom event on the lessons we can learn from Locke and Milton about free speech. It was well attended by students. That is the kind of thing we need: to be positive, not to whinge.

Not all university leaders are quite as bold, and I want to urge that this is where we end. Last week at Edinburgh University, a film screening due to be hosted by the Edinburgh section of Academics for Academic Freedom was cancelled for a second time. The film, “Adult Human Female”, is a gender-critical documentary, and we know how controversial that is. It was due to go ahead and given the go-ahead by the university, undeterred even by the Edinburgh branch of UCU cheering on a protest comprising a loudspeaker blaring out vile, frankly sexist, speeches. However, when masked activists shut off entry to the venue, university security did not remove them. The film was not shown again. I hope that the Bill will be used to look at how we tackle such examples as the heckler’s veto: maybe injunctions are necessary. I hope that the law will encourage the likes of Edinburgh University’s leadership to personally host the film, guarantee that it happens, and show some courage—which is what we need, as well as the law and a minor tort.

I urge all of us here to proudly wield this law as a proactive instrument to increase freedom, to support those many young students who want to hear diverse opinions, and to cheer on those academics who refuse to be silenced or bullied. It is not often that I have reasons to be cheerful about legislation in this place, especially pro-freedom legislation. Sitting through the Online Safety Bill scares me to death in terms of free speech. But on this one, I think that the Government have got it right, and I am proud to say: hear hear, let us get on with it.

[Lord Wallace of Saltaire (LD)]

My Lords, this has been a long process for a Bill that started two years ago. There have been five changes of Secretary of State for Education since then, more changes of junior Minister, and a certain sense that many of us have had that some of the Ministers guiding the Bill through both Houses were not as enthusiastic about it in all its forms as some of their Back-Benchers were. I regret that we have this further amendment, which I do not think strengthens the Bill. The compromise we agreed last time was better and I was not happy to read the debate in the Commons, where it was evident that the Common Sense Group was doing its best to push back to put harder elements into the Bill.

I have spoken already about the colonisation of the right wing of the Conservative Party by the American Republicans and various other right-wing foundations there. I note yet again how Miriam Cates cited various American sources in her short speech. I note that James Sunderland made the positively Trumpian remark that one of the reasons why all these left-wing blogs were attacking people like him was that they did not like the truth, which was what, clearly, the Government ought to be standing for; Truth Social is, of course, Trump’s rival to Twitter.

We need to think carefully about what we understand by freedom of speech. Members of this House will have noticed perhaps the story in the Times and “Newsnight” last week that the Cabinet Office had been looking back through social media posts of people invited to talk to senior civil servants there and cancelling the invitation if it was found that they had said things overcritical of the Government.

As the noble Baroness, Lady Fox, has just said, perhaps uncharacteristically, freedom of speech is about diversity of opinion—and it needs to be diversity of opinion. I remind Ministers and others of the excellent Second Reading speech from the Conservative Benches which also said that universities are “autonomous institutions”. Conservatives are in favour of the principle of limited government and limited intervention in the affairs of autonomous institutions, and we need to be careful how much the state intervenes.

We have now come clearly to the end. This is an unsatisfactory compromise but, as so often, that is where we end up. The appointment of the free speech champion is now key and I hope that our Ministers here will do their best to ensure that this is seen to be as fair and open and uninfluenced by those on the right as possible. The hints we get of that appointment suggest to me that things are perhaps moving in the right direction but, if this is going to work, it is important that it is seen to be fair and acceptable to all sides.

I remind the Minister also that our universities are a huge national asset and a very important source of invisible exports, and that the damage done to our universities by the appearance of wider state interference in their autonomy, rather than leaving them to manage their own affairs—making mistakes, as even the Government occasionally do, but managing things on the whole not too badly—would damage Britain’s reputation around the world and damage Britain’s economy.

I also just remark to Ministers and those on the Conservative Benches that one of the analyses of the local election results last week suggested that the sharpest decline in voting Conservative had come from people who were university graduates. That ought to worry Conservatives. To be seen as the anti-intellectual party should be a source of unhappiness to all except those who believe in the liberal elite conspiracy theory that Britain is somehow governed by an invisible elite of university graduates, BBC presenters, academics and the like.

Having said that, I accept that we are where we are. We have come to the end on the Bill and it is time to leave it as it stands. But I hope Ministers will take back that how this is implemented and, in particular, how the next appointment is made will make a great difference to the degree of confidence that universities’ staff and students have in how the Bill is applied and, in the longer term, to the value of their international reputation and national standing.

[Lord Willetts (Con)]

My Lords, we are now reaching the conclusion of what has been a long, time-consuming, complex process, and I think the process of revising and scrutinising this legislation has meant that we have ended up with a Bill that is better designed and stronger and more effective than when we started.

The further amendment which the noble Earl, Lord Howe, has introduced today, having been passed in the other place, recognises a genuine grievance. I can understand absolutely that, in some situations, you need an injunction to move fast. We heard from the noble Baroness opposite about this in a previous debate. The argument that there will be circumstances where an injunction will reinforce the freedom of speech is a powerful one.

I think the noble Lord, Lord Grabiner, was perhaps pessimistic. It will depend on decisions of courts as to whether there is a reasonable case for an injunction. I can certainly see circumstances where that is necessary, but anything more that the Minister can say about what those circumstances are would be very helpful.

I think all of us in all different parts of the House want to see universities functioning as places where people learn how to disagree. That is what we hope to see in our universities, and there is concern that they are finding it harder to discharge that role than they did.

Finally, can I just ask the Minister on three other specific points? First, there is a danger that this legislation has the opposite effect to the one intended and the panoply of regulation and legal challenge means that people try to go for the safe option of just not inviting outside speakers in the first place. It would be really helpful therefore if we tracked over time the number of outside speakers invited to and speaking at universities. Surely one simple and obvious measure of whether this legislation is working is whether the number of outside speakers rises or falls. If it starts to fall, we will have to look again. If it rises, we will be confident that the Bill has had the desired effect.

Secondly, I believe in the autonomy of universities. One of the strengths of our university system is absolutely that universities are self-governing bodies. That is what “universitas” means—self-contained and self-governing. The Minister will be aware that the ONS is now investigating the status of universities and whether they should be defined as entering the public sector. There are lots of ways in which the Government can expand the state, and one way is by intervening so heavily and so frequently that in reality these institutions become public institutions. It would be a disaster for the British model of higher education if our universities become part of the public sector. I hope the Minister will also give the House an assurance that the Government will do everything they can to ensure that this external assessment by the ONS—assessing how much autonomy universities have and whether they should be regarded now as part of the public sector—means that universities continue to enjoy the autonomy which ensures that they do not enter the public sector.

18:30

Thirdly, and finally, it would be helpful to know a bit more about the next steps, particularly the important nitty-gritty detail of the way in which the OfS will interpret the duty to promote freedom of speech. There is guidance to be written, which needs to be debated, considered and discussed. It would be helpful to hear from the Minister how that will work and what the timescale for it will be.

We wish this legislation well and all of us hope that, as a result, we see freedom of speech in our universities even more strongly protected than it is at the moment.

[Earl Howe (Con)]

My Lords, I am grateful to noble Lords for their questions and comments, which I shall do my best to respond to. I begin with the noble Lord, Lord Wallace, who made, if I may say so, a very gracious speech—I know that he has severe doubts about the Bill. I fully subscribe to his remarks about the need to preserve diversity of opinion in universities and about universities being national assets. The hope and belief we have is that these proposals will ensure the delivery of the cultural shift that can restore our universities to their position as the powerhouses of open debate and transformative thinking. But he is also right to say that much will depend on how the Act is applied.

Here, I think I can appropriately move to the comments made by the noble Lord, Lord Grabiner. He expressed his fear that the Bill as now drafted, if this amendment is accepted, will create perverse incentives and drive people towards the courts in the first instance. That is not the view of the Government. Injunctive relief, as I am sure he does not need to be told, is a discretionary remedy which may be used in limited circumstances where a court considers it just and convenient to order a provider, college or student union to take immediate—that is the key word there—action to remedy harm caused by a breach of their freedom of speech duties and where damages would not be sufficient. An example of that, as I mentioned, would be to require the reinstatement of a student who has been unlawfully removed from their course. We expect very few cases will proceed directly to court in pursuit of injunctive relief without first having exhausted the OfS or OIA schemes. The Government are clear that, aside from the injunction exception created by our amendment, the tort should be used only as a last resort where complainants are not satisfied with the outcome of OfS or OIA schemes.

I remind the House very briefly that the claimant in such a case would need to point to a genuine loss that they had suffered as a result of a breach of freedom of speech duties in Section A1 or Section A5 in order to bring a claim. We should also note that only a person specified in Section A1(2) could bring a claim. We therefore consider that they would do so only if they have suffered because of a breach of the duties, even if, for example, that loss is damage to reputation and not a monetary loss.

The noble Baroness, Lady Thornton, asked for clarification on the extent to which we feel the injunction would be resorted to. Emergency injunctions applied for in order to prevent a breach of the freedom of speech duty before it occurs would not be subject to the requirement to exhaust a complaint scheme first, since the schemes can consider only complaints of a breach that has already occurred. It is true that those who anticipate a breach of the duties can go directly to court to seek an injunction to prevent that breach occurring. Such a complaint could not be considered by the OfS or the OIA because there would be no breach of the duty to consider. However, we are now considering the situation where there has already been a breach of the duties. In most cases, the complaints schemes will provide the best route for redress as they are free to use, but where there is a need for a speedy remedy, we have decided that we should allow immediate access to the courts. The Bill is setting up a new OfS complaints scheme and establishing the statutory tort. This is about making sure that both new mechanisms mesh together in the best way possible.

My noble friend Lady Lawlor expressed her fear that an institution might delay a decision indefinitely and draw out the process. She may like to note that it will be for the Office for Students to make the rules for how the scheme will operate, which it will consult on. Paragraph 5(2)(b) of new Schedule 6A specifically refers to how it will deal with the internal review processes of higher education providers, as it may include provision in the rules about the issues to which she referred. The Bill states that the OfS complaints scheme may include provision that a referral under this scheme can take place only after the complainant has exhausted any internal complaints procedure of the higher education provider, college or student union. In the context of the injunction, that does not apply to applications to the court for such an injunction where a swift remedy is sought, as any delay caused by making an internal complaint would be too long in such circumstances. I hope that that is helpful to my noble friend.

I was grateful to the noble Baroness, Lady Fox, for what she said about the need for a culture change and, in particular, for highlighting the role of the director of free speech in the OfS. The director will bring critical external experience and knowledge from the higher education sector, and they will build strong working relationships between the OfS and the sector, providing strategic oversight for the freedom of speech programme and gathering insights from providers. We expect the flow of information to be very much two-way, and this will be critical to the OfS as it develops guidance for higher education providers, constituent colleges and student unions to help them comply with their new duties, including highlighting best practice. The OfS will be monitoring what happens.

I hope that provides an answer to my noble friend Lord Willetts, who has expressed fears all along that the Bill may in fact have the opposite effect from that intended and cause a cooling effect on universities which might otherwise wish to invite controversial speakers. We do not agree with that, but it is because the culture needs to change, and we believe we have the means to change that culture, that I think, hope and believe that his fears will not be borne out.

Reverting to the noble Lord, Lord Wallace, and indeed to my noble friend Lord Willetts, we wish universities to be thriving, autonomous centres of free thought, free speech and free debate, and the mechanisms that we are setting up today should be of assistance in promoting that. As I said earlier, if the House accepts this amendment today, we will have achieved the consensus required to enable the Bill to proceed to Royal Assent. I hope the House will do so, and implementation can then follow.

Motion A agreed.

18:40

Sitting suspended.

Illegal Migration Bill

2nd reading
Wednesday 10th May 2023 Lords Chamber

Second Reading (Continued)

19:01

[Lord Sherbourne of Didsbury (Con)]

My Lords, in the House of Commons there is no party like the party of Marine Le Pen in the Assemblée Nationale, like Alternative für Deutschland or like Vox in Spain. The reason for that is that the House of Commons is a sensitive barometer of public opinion. MPs understand their constituents, and their constituents believe, rightly, that there is a problem of immigration. MPs of all parties know that there is a problem of immigration. That problem has been discussed endlessly today: the problem of perilous journeys across the channel, drownings, traffickers, the gangsters arranging those journeys, the cost of coping with large numbers in this country and the particular pressure on local communities.

It is worth reminding ourselves that that is why the House of Commons sent us this Bill. I know that the noble Lord, Lord Coaker, said he would not be cowed by that, and I understand what he means, but it is a Bill that has come to this House from the elected House of Commons.

I do not know whether anybody else has said this, but the Prime Minister has been very involved in this Bill. I think that everyone across the House, whatever their party, would agree that he is a man who is serious, clever and decent and does detailed work, so we have to recognise that the Bill deserves very serious consideration

Of course the Bill needs to be scrutinised but, while the noble Lord, Lord Coaker, said that he would want to make changes to it, I would have liked him to have gone a bit further and said he would not thwart the Bill or emasculate it. Some people in this House, such as the Lib Dems, would like to kill the Bill. The noble Lord does not, but it is important that the Bill is given a fair wind. It is important that the House approaches the Bill to make it more effective but not to destroy its purpose, but I suspect that that is some of the intention of what might occur in Committee and on Report.

The noble Lord, Lord Blunkett, who is not in his place at the moment, has expressed scepticism about the Bill, but he said that we should allow it to go through and see whether the Government can really make it work. That is the right attitude with which to approach the Bill. The point that I am making is simply that we must give it a fair wind.

19:04

[Lord Horam (Con)]

My Lords, it is always a pleasure to follow my noble friend Lord Sherbourne of Didsbury. He is a fellow Lancastrian and we always talk common sense, so I think what he said is entirely sensible.

The issue of illegal immigration by small boats, which is central to our discussion today, is not just a UK problem; it is a problem in western Europe. Greece, Italy and Spain, among others, are struggling with it, and no one is finding it an easy problem to resolve.

However, one country has actually cracked it. I refer to Australia. What happened at the beginning of this century was that people came from Papua New Guinea in small boats—quite large boats in some cases—to the northern shores of Queensland. The then Liberal Government decided that the way to tackle that was to pass an amendment to existing migration legislation, not dissimilar from the measures that my noble friend is introducing today, and at the same time establish, radically and newly, an overseas processing centre on the island of Nauru near the Solomon Islands. The boats stopped coming, and that was the end of the matter.

Subsequently a Labor Government came in who, interestingly enough, opposed all this. They dismantled it, and a second wave of boats came through. The Labor Government then changed tack and began to implement the Liberal policies that they had previously opposed, but it was too late: there was a general election, the Liberal Government were returned on a policy of national sovereignty and they produced a more thoroughgoing version of the original policy. As a result, the Labor Government changed their tune, and that policy, which stopped the boats completely, has cross-party support.

On the basis of that, Australia has produced a methodical and rational system of immigration, with total cross-party support, looking at the number of people each year that it wants to allow into the country, including those who want to come in as students, those who want to come for family reasons and those who want to come in to work. It is debated annually—a whole day’s debate in Parliament, rather like the debate we are having at the moment—and then decisions are made and the policies implemented. The numbers can go up and down. The latest interest is that the new Labor Government have decided to increase the level of migration, but within a framework that has solid cross-party support.

I will not pretend that there are not big legal and geographical differences between Australia and this country—obviously that is so—but none the less it is important to look not just parochially at what we do but across the world at what is being done. It seems to me that they have done something very wise that we could well implement. I have talked to them at some length over the past year about how they did it. They stress to me that it was essential, first, that they denied to illegal migrants the possibility of being an asylum seeker and, secondly, that they could then transfer them to the overseas processing centre near the Solomon Islands at great speed. That, in essence, is what we are trying to do here: to turn the situation around very rapidly within the framework of British laws, which are different from Australian laws.

Those who oppose the Government’s policy tend to argue that we need new pathways for legal immigration, and I entirely agree. What we have at the moment is rather unsatisfactory; it is too specific to particular countries and too narrow, and we need to expand it and have a more rational approach. However, the truth is that we need to do that while having policies to deter. We need both. We need—to use a Lancastrian term—a belt-and-braces approach to this issue, otherwise we will not succeed.

I made this point, incidentally, when we had the debate on 9 December initiated by the most reverend Primate the Archbishop of Canterbury—good for him, because we need debates on this topic of immigration. He argued that it was right to have more legal pathways, because if we had a new, low-cost way of getting here, it would demolish the model of the traffickers, who would no longer be in business. Sadly that is not the case, as my noble friend Lord Howard pointed out earlier. If we have a new way of coming here, the people who do not get on to that route will find a private method, either because they cannot or do not want to get on to the new route or because they find it more congenial to come via private methods. Whatever the reason, we will not kill off the traffickers’ trade if we simply offer more legal routes. We have to have a deterrent as well.

There is also a bigger picture that we ought to mention, which sometimes the noble Lord, Lord Paddick, rightly mentions: this is a small number; the big number is the 700,000 or so people who are coming across legally, and we have to have a look at them. I am sure my noble friend Lord Hodgson will elucidate on this in his remarks. We need to look at that bigger picture.

This is a small beginning but, if we can get it right and get public trust back, then we can also tackle the bigger problem.

19:10

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, my noble friend Lord Horam always talks a lot of good sense, and I am pleased to be able to follow him. The House will be aware that I have a long-standing interest in absolute numbers and whether there is a number that this country can sustain, either permanently or by absorbing it on an annual basis. It is not so much where they come from or who they are; it is just that they are people who make demands on our space, whatever our space may be. It will come as no surprise to noble Lords that a Bill such as this, which in Clause 1 offers the primary objective of restricting illegal migration to this country, has my support and seems to offer a good line of approach.

I am very much aware that this leads to one being described, at best, as heartless. I reject that; I am as aware as any other Member of the House is of the dreadful circumstances in which many citizens of other countries live. Nevertheless, however difficult or painful, we have to set this whole issue in context. Sadly, the debate about levels of migration, which are inevitable as a result of our increased population, has become rather lopsided and dominated by two groups, both of which favour increasing the rate. The first can be described as the moral case, which is the underlying background to a lot of the speeches today; the other is the economic case of people to fill the jobs.

Let me quote from a recent magazine article:

“The left hates talking about immigration because it thinks any kind of controls, anywhere, are racist; the right has been running an economy, in part, dependent on endless reserves of imported labour, which it doesn’t like talking about. However, few things are more corrosive of public trust than pretending a problem isn’t there. Sooner or later the public notices”.


Where did that come from? It is Mr Andrew Marr in this week’s New Statesman. I do not often quote the New Statesman or Mr Andrew Marr with approval, but they have got this bang on the button.

Both arguments have merit, of course, but what is lacking is any counterview expressed on behalf of the 67.3 million people already settled here, 18% of whom come from minority ethnic groups. Their concerns include economic worries, of course, but also a wide range of what I call quality-of-life factors: access to open space; damage to our ecology and our environment; an ability to achieve our climate change goals; our future food and water security; increased pressure on education, health and social services; and the impact on social cohesion generally. In February this year, I commissioned some polling on these points. If any Member of your Lordships’ House would like to see the polling, I will happily send it to them. The polling revealed that across all ages, all social grades, all regions of the United Kingdom and all voting preferences, about 60% were concerned about future population growth, 51% thought that there should be a cap on the level of net migration, and over 60% were concerned that the Government had no plan in place to consider this.

Since the Blair Government first allowed—perhaps encouraged—large-scale migration, the population of the UK has gone up by 8 million people, equivalent to three cities the size of Manchester. As year has succeeded to year, Governments—including my own—have explained away the successively higher figures as a series of one-off events, but these one-off events have kept on coming and the British people have been presented with a series of faits accomplis. If we as a Parliament do not find ways to address these concerns, wilder and less attractive spirits will inevitably begin to make the running.

In addition to the general direction of travel, the Bill begins to address the problem in two specific ways. First, in Clause 51 it institutes, for the first time, a total cap on numbers—a cap which will be drawn up after consultation with local authorities and debated in Parliament. In this connection, I pay a very sincere tribute to Stephen Kinnock, the opposition spokesman in Committee in the House of Commons, who gave the Labour Party’s support to the idea of a cap. Secondly, the Bill offers fairness. There will be no reward or advantage for an economic migrant who gets on a boat to cross the channel and so jump the queue. The British people as a whole are generous but they also place a good deal of reliance on fairness, and the Bill offers this.

The House can take one of two approaches. It can follow the line of the noble Lord, Lord Paddick, and deny the existence of any problem—or at least, deny its existence if only people like the noble Lord, Lord Hodgson, would stop talking about it—and attempt to water down the Bill, so that it becomes ineffective, or it can recognise the deeply held views and concerns of our fellow citizens, and work to ensure that we respond to them.

19:16

[Lord Purvis of Tweed (LD)]

My Lords, I am following four consecutive Conservative speakers and, with respect, I have more in common with the first of those four, the noble Baroness, Lady Helic, than with the subsequent three. The noble Baroness rightly quoted the Statement that the noble Lord, Lord Murray, repeated in this Chamber on 8 March. The Minister said then

“let us be honest: by some counts there are 100 million people around the world who could qualify for protection under our current laws. Let us be clear: they are coming here”.—[Official Report, 8/3/23; col. 846.]

But this was not honest, and the Minister clarified and corrected the record later in the proceedings.

Globally, at the end of 2022 there were 101 million forcibly displaced people around the world, the majority of whom are internally displaced within their own country —support for whom the UK has slashed its humanitarian assistance to by up to 60%. The global figure for those seeking asylum is 4.9 million; they are still not coming here. But the 1% who are seeking it come here against a narrative which, as my noble friend Lady Kramer so eloquently pointed out, states that they have values that are at odds with ours or that they will cannibalise our society. Now we are being asked to ban claims of asylum because of the method of their arrival rather than the merits of their claim.

The House of Commons Library has showed that the percentage of asylum applicants refused at initial decision reached its high point in 2004, at 88%. Since then, the refusal rate has been falling overall and was just 24% in 2022, its lowest point since 1990. Much of this debate has been about saying that we have an emergency crisis now, but we have the most successful level of justified asylum in 30 years. Some on the opposite Benches say that this is because of judicial activism but, as the noble and learned Lord, Lord Etherton, said at the commencement of this debate, we actually have tighter restrictions now than ever.

If you are a young Iranian woman threatened with being poisoned in a college, or a young Sudanese woman fleeing threats of rape by the Wagner Group in Sudan, the Government are now banning you from asylum because there are no safe and legal routes from those two countries. The Government need to be clear that there are no safe and legal routes, but their obfuscation comes time and again. I think the Government find it hard to defend the lack of safe and legal routes; that is why they are obfuscating.

The Minister referred at the start of this debate—he declined to take an intervention from me—to the global scheme, as the noble Lord, Lord Ahmad, who I greatly respect, has. He said that the UK scheme for resettlement of vulnerable refugees is open to anyone from around the world. It is operated through the UNHCR, but what the Government do not say is that the Home Office has asked the UNHCR to have that scheme prioritised for Afghans only, therefore limiting it for others.

The Independent Commission for Aid Impact did a review and I will quote from its report in March:

“As a result, the UKRS has almost completely ceased processing vulnerable refugees for resettlement to the UK, in effect closing a rare safe and legal route to seek protection in the UK for refugees who do not fall under a nationality-based scheme”.


Not only are we asked, for the first time in our nation’s history, to end the ability to claim asylum, we are reducing UK support in the very troubled areas people are seeking safety from. The Government do not believe that there are consequences for this, either.

I want to raise something not yet mentioned in the debate. In the 1990s, the UK opposed scoring in-country support for refugees as overseas development assistance, but this is allowed for under ODA rules. Ten years ago, this was a negligible amount. In 2021 it made up 9% of all UK ODA. ICAI estimates that now this is one-third, because the Government—unique among all developed nations—are scoring all domestic support under overseas development assistance. This means that we are now, for the first time, spending more overseas aid in the UK than on bilateral programmes addressing the root causes of the issues that we have been debating today. Because of the unlawful 0.5% cuts, this is now capped.

When the Government and the Minister say that the country is “generous and welcome”, I agree with them; it is that. However, if you seek asylum—a shelter in a storm, as Churchill described it—and if you are a child, you will be denied and you will be locked up before you are sent away and we will not even listen to your case.

On “generous”, let me tell the House that, when it came to the Ukraine scheme, the Government quite rightly trumpeted their thank you payments for families of £350, which has now increased, per family hosting Ukrainian refugees. This is scored 100% on overseas development assistance, which means that the Government do not tell the family that the thank you payment has been cut from children starving in the Horn of Africa, or from those who are fleeing conflict abroad.

I think the Government know that the public are not on their side. That is why they are not giving the full picture. This Bill has no moral basis; we should not be legislating for it, and we are causing more damage around the world, which will make the problem even greater.

19:22

[Baroness Bray of Coln (Con)]

My Lords, I think we can all agree that this is a complicated and contentious issue that generates strong views. But maybe we can start with a part of the Bill on which there might be some agreement—the Government’s indication that they want to consider opening more safe, legal routes for those in genuine need of asylum in this country. The Bill states that, once it is passed and the number of illegal migrants starts to fall, the Government intend to look at possible new safe routes. An annual cap will be agreed each year, in consultation with local authorities, to determine what capacity there is, which is vital. In the event of any humanitarian emergency, it is made quite clear that the cap can be amended. This is surely as it should be, providing as much safety and support for those having to flee from threats, violence and maltreatment as we have the capacity to manage.

The biggest obstacle to this is the growing number of illegal migrants who arrive here. Some are in lorries, but most are in boats these days. If caught trying to enter the country—many are not—they often claim to be under threat in their home country, when in fact they are economic migrants, intent on taking advantage of what this country can offer. They paid huge sums to people smugglers to get them here, travelling through safe countries on the way—why do they not seek the right to settle in them?—and jumping the queue of those in genuine need who have been waiting their turn to come here.

The number of illegal migrants has quadrupled in the last four years. Last year, around 45,000 illegal migrants arrived by boat. That is slightly more than the equivalent population of two Cirencesters, the town near where I live. If we do not control our borders better, how will we keep finding more and more space every year, equivalent to two Cirencesters, to build extra accommodation for that number of illegal migrants, which is increasing every year?

Meanwhile, we read almost daily in our newspapers about the growing housing shortage. It is becoming a serious problem. Regarding our immigrant numbers in this context, there are those who are here legally and require housing—some 500,000 net over the past seven years—which is a major added pressure. There are also those many thousands who have no legal right to be here. They also have to be accommodated while their claims slowly work their way through the legal system, at huge extra cost and no benefit to the taxpayer. This is an example of how illegal immigration makes it more difficult for this country to make provision for the genuine legal asylum seekers whom we want to support.

We must put the people smugglers who encourage illegal migrancy out of business. Enforcing the new laws laid out in this Bill would permit speedy removal of all those illegal migrants they have brought here. As a result, fewer and fewer passengers would think that what the smugglers offered would be worth the huge amount of money they charged to bring them here. The dangerous risks attached to the journey would not be worth it, either.

The Prime Minister told a news conference back in March that, since a deal was agreed with the Albanian Government to take back Albanian illegal migrants—whom we now fly back promptly—the number of Albanians coming here illegally has fallen significantly. The change in the law to allow the prompt removal of illegal migrants in this country is central to how we go forward. They will either be flown straight back home if safe, or to Rwanda, which has been identified as a suitable alternative if they do not wish to return to their country of origin. Outstanding legal claims to live here in the UK will have to be taken up from where the claimants are resettled.

I would like to echo the concerns expressed by my noble friend Lord Sandhurst about the proposals concerning modern slavery. I ask my noble friend the Minister whether there is a possibility that those proposals can be reconsidered so that victims of modern slavery already in this country can safely report their condition without being sent home.

Finally, the general purpose of this Bill is to deter illegal migrants from setting out in the first place. No legal entry will be granted, except in special circumstances, to those who have already tried to enter illegally. We must deter them from trying and stop the smugglers making money out of misery. We need to change the law to do so. We cannot leave things as they are.

19:27

[Baroness Bennett of Manor Castle (GP)]

My Lords, in opening this debate the Minister said:

“Our broken asylum system is costing the country some £3 billion a year”.


I thought I would look up the list of Home Secretaries since 12 May 2010—Theresa May, Amber Rudd, Sajid Javid, Priti Patel, Suella Braverman, Grant Shapps and Suella Braverman again. Which one of those does the Minister hold responsible for our self-described “broken asylum system”? Or is it all of them?

My noble friend Lady Jones of Moulsecoomb has covered the general horrors of this indefensible Bill. I am going to focus on some of the actual people, the individuals, who will be caught by it. They will be subjected to what can only be described as utterly unacceptable, inhumane and abusive treatment.

The Minister in his introduction said that 70% of the children arriving were aged over 16. So they would only spend two years or fewer warehoused here in the UK before it is time for “Happy birthday, your present is a deportation flight”. Of course, that means that 30% of cases will be facing more than two years in that situation of warehousing. For an eight year-old, 10 year- old or a 12 year-old, what would such a situation—the full knowledge of such a fate—do to their health and well-being? That that treatment breaks the UN Convention on the Rights of the Child is only a statement of the obvious.

As the noble Baronesses, Lady Lister and Lady Sugg, and others, highlighted, pregnant refugees are also trapped by this Bill—a small but important victory won by cross-party campaigns in 2016 to exclude them from immigration detention would be wiped out. Their babies will be born into indefinite detention. How long will they stay in that situation? How inhuman are the Government prepared to be?

There are people with mental health conditions and refugees who arrive here with conditions often induced by torture or war, or who develop them as a result of our hostile environment. I have a direct question for the Minister. Has he read the detailed forensic examinations of the impacts of the Bill from the Royal College of Psychiatrists? It quotes the Shaw review, which found that

“immigration detention has a negative impact on detainees’ mental health”

and that

“the impact on mental health increases the longer detention continues”.

As many noble Lords have said, there are victims of modern slavery and trafficking. The Royal College report points out how frequently they, understandably, suffer from complex and difficult to treat PTSD. What will indefinite detention or removal to Rwanda do to them?

Picking up on that group, I am indebted to the noble Baroness, Lady Kennedy of The Shaws, for some information from an impeccable source—unpublished Home Office information—that shows that there is already an outrageous and persistent slavery-survivor protection gap. Of the 11,137 confirmed cases—I emphasise that figure—of trafficking and modern slavery survivors being referred for consideration for discretionary leave to remain in the six years and nine months between April 2016 and December 2022, only 738, or 7%, have been granted leave to remain. Far from refugees gaming the system, we have a system that is already a lottery, and the Bill takes away any chance for those people to establish a secure life for themselves.

On people who will particularly suffer under the Bill, the noble and learned Lord, Lord Etherton, mentioned LGBTQIA+ refugees. Rwanda is not safe for them, and neither are many of the other countries to which they might, theoretically, be shipped.

Some might say that the particularly vulnerable people I have listed are not the majority of refugees who reach our shores by non-orderly means. As the Minister said, the overwhelming majority of arrivals were adult males under the age of 40—that is a fact. They are men like the refugee now settled in Norway, to whom the noble Lord, Lord Paddick, referred. But what do the Benches opposite have against young men? Most of them were young men, once.

I finish with a couple of general points arising from the debate. First, as the noble Baroness, Lady Prashar, said, asylum is a collective responsibility of all states, as the UNHCR and the Council of Europe Commissioner for Human Rights, among many others, pointed out. If other nations followed the Bill’s lead, there would be a breakdown in the international system of refuge. Secondly, again highlighting the words of the noble and learned Lord, Lord Etherton, this is not a small boats Bill; its provisions would affect all who seek refugee status in this country. It is a comprehensive anti-refugee Bill.

Finally, the noble Lord, Lord Forsyth of Drumlean—who is not in his place, unfortunately—quoted John Stuart Mill:

“Bad men need nothing more to compass their ends, than that good men should look on and do nothing”.


That is a useful reflection on the amendment to this Motion—the Liberal Democrats’ bid, which has whole- hearted Green backing, to stop the Bill in its tracks now. We have heard all the usual reasons and excuses for why we should not: “We are only a House of review”, or “We are only an unelected House”. I will repeat a question that I put on Part 4 of what is now the police Act, which explicitly targets Gypsy, Roma and Traveller people. It is a direct question to those planning to vote against, or abstain on, the amendment on stopping the Bill. Is there nothing you would stop? Where do you draw the line? Surely you have a line.

19:33

[Lord Fairfax of Cameron (Con)]

My Lords, as other speakers said, we now live in an age of mass migration. As my noble friend Lord Hague often says, the population of Africa and the Middle East is expected to increase by about 1 billion people by the middle of this century. Of course this country has benefited over the centuries from immigration, but this is now an increasingly crowded island, with all that that means for our already hard-pressed housing and public services.

For many years, debate on this subject has often conflated economic migrants with genuine asylum seekers, which is why it is absolutely right that the Bill distinguishes legal from illegal migration. This very difficult issue is faced not only by this country, as many noble Lords know—you only have to look at Italy, Greece, France and Germany to see that—and our recent agreements with France and Algeria reflect an important recognition of that reality.

The Government recognise that the current asylum system is not working. As noble Lords heard, there is a backlog of 160,000 cases, more than £2 billion per year is being spent on accommodation, and, apparently, more than 80,000 people have illegally entered the UK since 2018, often having travelled through multiple safe countries to reach the UK, due to our so-called pull factor. So I welcome the Bill, as do a majority of our citizens. It is the Government’s genuine attempt to remedy our current broken system.

Today, we have heard plenty of outrage from various sections of this House but very little by way of alternative workable solutions to this admittedly very difficult problem. As an earlier speaker said, it is about deterrence —to cut off demand from the organised criminal gangs that are gaming and profiteering from our current system —and I agree with that. No doubt the Bill can be improved here, but it should not be mauled unrecognisably; in my view, that would not be understood or accepted by a majority of our citizens.

19:36

[Baroness Mobarik (Con)]

My Lords, I agree with little in the Bill, other than the broad premise that we must control the dangerous channel crossings and end the business model of the people smugglers. But the term “stop the boats” does not accurately reflect the Bill’s wide-ranging impact on asylum seekers and refugees, whichever mode of entry they take into the UK. This is a hugely complex issue, and it would be good to hear from the Home Office what strategy it is building to identify true need, rather than those wishing just to take advantage of the system, and what efforts are being made to establish safe and legal routes.

The current backlog in processing those already here and the cost to the taxpayer is clearly not acceptable, and it requires resource and efficiency on the part of the Home Office to clear. But if we seek to close our borders to those fleeing persecution without even allowing them a hearing, we are saying that we are outside the principles of international co-operation on which the global refugee system is based. We are in danger of criminalising, incarcerating and forcing statelessness, homelessness and destitution on genuine asylum seekers, many of whom are already traumatised on arrival.

There are 34 million refugees and asylum seekers in the world today, with millions more internally displaced people, and the vast majority are being hosted by countries that border the conflict areas. I have seen the Rohingya refugee camps at Cox’s Bazar in Bangladesh. I have seen the vast refugee container camps in Gaziantep, on the Turkish/Syrian border, and the Syrian refugee camps in Jordan—a country that has already hosted Palestinian refugees for many decades. International co-operation is key to solving one of the biggest issues that the world faces: the mass movement of people due to conflict but also because of climate change. The United Nations High Commissioner for Refugees categorically stated that, if the Illegal Migration Bill is enacted in its current form, it would break the UK’s obligations under the refugee convention and significantly undermine the international refugee protection system, which needs support from all members.

We cannot just throw up our hands and opt out of a system that we were front and centre in helping to shape because things have become difficult. Our international reputation must be preserved, because respect from, and collaboration with, the international community is paramount for the future success of Britain. We have always prided ourselves on our sense of fairness and capacity to protect those in need. I hope that we wish to leave this good reputation for future generations: our belief in the moral imperative to be open in minds, hearts and actions.

The Children’s Commissioner, who has a statutory duty to protect the rights of children in England, including those who have arrived in the country fleeing from war and persecution, has stated that the Bill undermines other legislation, such as the Children Act 1989. I say to my noble friend the Minister: let us not forget that it was a Conservative-led Government under David Cameron who ended child detention and quadruple-locked it into legislation in the Immigration Act 2014. The safeguards and protections under that legislation are being removed by the Bill.

The oft-held belief that many claiming to be children are over the age of 18, and thus adults, is flawed, as last year alone 850 children were wrongly assessed as adults and sent to adult accommodation and detention centres, which put them directly in harm’s way. The Refugee and Migrant Children’s Consortium says of the Bill that

“the proposals will leave children locked out of claiming refugee protection; detained; removed; if unaccompanied, accommodated by the Home Office outside the established care system; if a victim of trafficking or child of such a victim, unprotected; and denied their citizenship rights. Children will be left in limbo for years, unable to access any form of status or to rebuild their lives”—

and, I add, with the very real threat of being deported to Rwanda when they reach the age of 18. These most vulnerable young people are affected at a time in their lives when there are deep and lasting consequences. Similarly, the Modern Slavery Act 2015 enacted under another Conservative Prime Minister, Theresa May, is also compromised by the Bill.

In addition, some of the language used in the other place while debating the Bill has been deeply unhelpful; in fact, I am dismayed by the narrative that the Home Office has adopted. Stigmatising and stereotyping people, wherever they come from and under whichever circumstances, will do little to advance our aim to manage this most difficult issue. We all wish to see prosperity and security for our country but, I hope, with our principles and values intact. We must be on the right side of doing the right thing. The disquiet and discomfort that so many of us feel, whether we can adequately articulate it or not, is indicated by how many of us are participating at Second Reading. I hope that my noble friend the Minister will take note.

19:43

[Lord Hampton (CB)]

My Lords, the more I listen to the debate—and particularly to my noble friend Lord Carlile of Berriew—the more strongly I am convinced that the Bill is morally questionable, legally doubtful and totally unworkable.

Setting to one side these wider challenges with the Bill, I will focus attention on the impact it would have on minors, whether accompanied or not. As we have heard, particularly from the noble Lord, Lord Howarth of Newport, the Bill proposes that these children, if not immediately deported, may be accommodated by the Home Office outside the established care system. On reaching the age of 18, they will be deported to a third country, with which they most likely have no existing ties, and will face a lifetime ban from entering Britain. Accompanied children who are not given the right to remain will also be barred from the UK for life.

Despite this disproportionate punishment for the children, I do not believe that it would even act as a deterrent, even though the Minister said that the purpose of the Bill is supposed to be as a deterrent. People desperate enough to take to the boats will not be put off by a punishment that would be enacted many years into the future. To quote the Refugee and Migrant Children’s Consortium:

“The Bill also undoes a decade’s worth of progress made under the Conservative government, reversing the ending of child detention and protections for child victims of trafficking”.


The noble Lord, Lord Forsyth of Drumlean, complained that no one is providing solutions, but neither is the Bill a solution. It will not solve the migration crisis; it will just add to the massive backlog of cases waiting to be processed. I agree with my noble friend Lord Kerr of Kinlochard that the solution can be found in centres in France.

As we all know, there is a growing illegal migration crisis. We all know that something needs to be done about it, but to attempt a solution that penalises children is misguided in the extreme. This is not how a civilised society treats the most vulnerable.

19:45

[Lord McInnes of Kilwinning (Con)]

My Lords, as always, it is a great pleasure to be part of a debate in your Lordships’ House, which, no matter which side one stands on the issue, marks the breadth of the expertise and opinion in this Chamber. I respect that expertise as well as the strength of feeling on the Bill from all sides. That strength of feeling exists because this House reflects the public debate taking place outside of Parliament. I will speak in support of the progress of the Bill, not because I take some pleasure in ever-more stringent asylum policy, but—and perhaps to answer the noble Lord, Lord Purvis—because I want to secure safe and legal routes based on humanitarian need; that provides a moral imperative for the Bill to succeed and to be improved.

Public policy must always rely on a contract with, and consent from, the British people; without that consent, the Government are powerless. The Government should be able to articulate the values of this country in welcoming humanitarian refugees in a constant, evolving policy based on humanitarian need. At the moment, this country’s asylum policy is in a state of stasis, or, at best, a reactive state; it is a reactive policy that requires a public response before the Government will act. A totemic tragedy, namely the shock when the body of two year-old Alan Kurdi washed up, galvanised the Government to institute a resettlement policy of 20,000 Syrians. Likewise, the Ukrainian and Hong Kong resettlement schemes, of which we are all proud, have both been implemented fully because of public consent and reaction. Meanwhile, the Afghan scheme for resettlement, which seemed so important to everyone in August 2021, seems to have stalled quite dramatically in its initial aims.

This start/stop policy of bespoke schemes does not represent the values or implementation of a truly humanitarian policy blind to race or geopolitics. Why do we think that our policy has fallen into this stop/start approach to asylum, and away from universal legal routes? The first reason is the failure of our asylum bureaucracy and the lack of resource to process claims. The Prime Minister is prioritising that process with extra staff and support, and that is to be welcomed. Backlogs not only create needless anxiety for those seeking asylum but destroy public confidence in the system.

That public confidence is, I am afraid, why this legislation is required. From 300 asylum seekers arriving in small boats in 2018, we have now reached 45,000. The toxin of this seeming lack of control and unfairness then denigrates all asylum seekers across the world. For those of us who want to ensure safe legal routes based on humanitarian need, it is very difficult to find the public consent necessary to permeate public policy beyond the bespoke schemes I have already discussed. Before 2018, there was an opening after the success of the Syrian resettlement scheme for wider schemes in conjunction with the UNHCR, but that discussion and debate has been paralysed by illegal crossings pushed by the malevolent people traffickers.

I accept that the Government must make every effort to stop the boats if we are to see an expansion of the legal routes on a humanitarian basis, which the vast majority of us in your Lordships’ House want to see. If we do not use all legislative tools at our disposal and rebuild public confidence, I do not believe that any Government, Conservative or Labour, or even a Labour/Lib Dem amalgam, will be able to fully implement a humanitarian legal route process with public consent. I hope my noble friend the Minister will be able to put further flesh on the bones of this legal route process to maximise support in this House.

As well as the survey of accommodation of local authorities to identify their cap, I ask that the Government give further commitments to work with the UNHCR, and that that work forms part of the regular statement that the Home Secretary lays before Parliament. I want a commitment to be given, as we progress the Bill, that routes will be identified to offer asylum to humanitarian asylum seekers, wherever they come from in the world. Transparency in a new process will provide the sunshine and hygiene required to build public confidence and rebuild pride in our humanitarian policy in this country. That is not to say that in the future there will not need to be bespoke policies responding to crises across the world, but they cannot be the basis for our asylum policy.

There are always going to be vulnerable people who will not have the media focus required to launch a bespoke scheme in this country. There must be a credible answer to the question Tim Loughton MP asked the Home Secretary at the Home Affairs Select Committee on routes for those outwith—to use a good Scottish word—the bespoke schemes. The Government will have to provide further assurance to get more support in your Lordships’ House. This Bill is sadly necessary if we are to help the most vulnerable across the world. I will not be able to support the fatal amendment of the noble Lord, Lord Paddick, later. Were it to be successful, I fear that the very people who need us to act for them would see safe and legal routes at the scale required becoming an ever more distant prospect.

19:52

[Baroness Bryan of Partick (Lab)]

My Lords, it is a bit much being lectured on what is and is not constitutional when this Bill, like so many other recent Bills, impinges on what ought to be the rights and duties of devolved Administrations. It is further evidence that the UK Government would happily undo the arrangements of the past 20-plus years and reduce or remove the powers of the other Parliaments. They might not be quite as ready as the noble Lord, Lord Frost, who is not in his place at this point, when he wrote recently on devolution that it was time to stop. His criticism was that the electors in Wales and Scotland kept voting for the wrong parties.

The spur towards devolution was the fact that, for many years, Scotland and Wales rejected the Conservative Party but had no way of mitigating the impacts of Westminster legislation until the referendums in 1997. The difference between the Welsh and Scottish Governments and the UK Government has never been as stark as in their approach to people seeking sanctuary through asylum and immigration. On this issue, the Conservative Party has no support outside—or outwith—its own ranks, and even many of them must be mortally embarrassed.

The rights established by the European Convention on Human Rights are written into Scotland’s devolution settlement and have been fundamental to the work of the Scottish Parliament over 20 years. The convention’s incorporation provides fundamental safeguards which ensure that, in Scotland, executive powers cannot be abused. Scottish Ministers cannot act in a way that is incompatible with the convention, and all its legislation must be compatible.

I think there is a consensus in this Chamber that the Bill will breach the convention and leave the Scottish Parliament in an invidious position under international law. Those involved in human rights in Scotland have described the Bill as creating an urgent human rights emergency. The Scottish Refugee Council condemns it as “morally repugnant” and “practically unworkable”, saying it

“will have severe impacts on women, men and children seeking safety”.

JustRight Scotland describes the Bill as “cruel, unnecessary and unlawful” and says it

“condemns people to living a life in limbo and strips them of all support”.

The Government’s delegated powers memorandum makes it clear that the functions of local authorities in respect of looked-after children are a devolved matter. This is recognised in Clauses 15 to 18, which state that they apply only in England, but there is a very real threat contained in Clause 19, which states that the Secretary of State may make regulations in future enabling Clauses 15 to 18 to apply in the devolved Administrations, again using secondary legislation. Clauses 23 and 24 will remove duties and powers that currently oblige the devolved Administrations to provide support and assistance to victims of trafficking and their families, including children. Instead, it will attempt to compel devolved nations to violate the duties set out in international law. This is contrary to Scottish legislation, as set out in the Human Trafficking and Exploitation (Scotland) Act 2015.

In almost all other countries, this Bill could not be tabled, as it breaches treaty obligations and is contrary to basic human rights. If the UK had a written constitution, this would be unacceptable. If the powers of Scotland, Wales and Northern Ireland were protected, this would not be allowed to happen. Under this Government, we are experiencing endless Bills that contravene natural justice and encroach on devolved powers. At some point, we have to say that this must stop. This Bill should be where we draw the line and say, “Not in our name”.

19:57

[Lord Swire (Con)]

My Lords, one of the advantages of speaking relatively late on in a debate such as this is that it affords one the opportunity to hear so many contributions from noble Lords and the passionate positions that many, quite understandably, have. On the whole, this debate has been conducted in a very even-handed way, and I congratulate my noble friend the Minister on setting the tone right at the outset. A debate such as this was always going to be emotional and controversial—on that, at least, we can all agree.

Having looked at the fatal amendment tabled by the noble Lord, Lord Paddick, I will not be supporting it, although I think it includes some interesting points. I believe that the proper place for the Bill to go is Committee, where it can be properly scrutinised and, where necessary, improved. I totally agree with the noble Lord, Lord Coaker, who said that your Lordships should not be cowed or intimidated by the other place. It is surely our role to do exactly what we are about to do, otherwise it seems to me that we have no point at all—I do not think we need ChatGPT to tell us that. That having been said, I entirely concur with the view of my noble friend Lord Sherbourne, who pointed out that the Bill, with amendments, has already gone through the other place and is a key part of the Government’s policy to stop the boats. We should bear that in mind as we go into Committee.

The noble Lord, Lord Dubs, who is in his place, spoke about one of the points that the noble Lord, Lord Paddick, has in his fatal amendment, at paragraph (4), about the failure

“to include measures to eliminate the backlog of asylum cases”.

I want to press my noble friend the Minister on this, because it seems to me that this is one of the worst problems confronting us today. Our inability to process those who are already here is a stain on our national character, leaving many of them in a kind of no man’s land, waiting for their future to be decided in conditions that, frankly, in some places are deplorable. Is it because of the legal challenges that are mounted every time a case comes up and, if so, how will this Bill change that? Is it the incompetence of those tasked with processing this? Is it a lack of resources? If so, can the Minister commit to more resources, as any Bill should address those who are already here?

Point 5 in the amendment from the noble Lord, Lord Paddick, is on the failure to include measures to tackle people smuggling gangs. The whole idea of this Bill is that there will be no need for such gangs if we can get it out there that, once you come here illegally, you will not be able to come here again. However, we need to make sure that that message goes out loud and clear. I remember that the Foreign Office was tasked with endless campaigns all around the world to bring the human trafficking Bill to the public’s attention in the localities where it was based. Once this Bill becomes law, as I believe it will, the Foreign Office will be tasked once more with pointing out all around the world that if people come here illegally then they will not be able to stay.

The most reverend Primate the Archbishop of Canterbury reminded us of the huge increase in the number of displaced people. Many millions more are anticipated by 2050 as a result of climate change or conflict. We see today what is happening in Sudan. If climate change gets worse, whole swathes of sub-Saharan Africa will become uninhabitable. We talk about the difference between internally displaced people and displaced people; I submit that, if they cannot live somewhere, soon those internally displaced people will have to seek lives elsewhere, creating huge migratory pressures.

The result of all this is that it is incumbent on us to have a fair and enforceable migration policy. Frankly, nothing I have heard this afternoon or since we started this debate suggests that any of those criticising this Bill have come up with a credible, workable alternative. We are left with a policy that is fair neither to those already here nor to those seeking to come here through legal channels. It is manifestly not fair to anyone.

The Greens seem to have something against Rwanda. Those of us who went there for the Commonwealth Heads of Government Meeting last year saw a very different country to that depicted by some whose knowledge of the country may be a little second-hand or out of date. It is known as the Switzerland of Africa; I believe it is well placed to receive asylum seekers. I would like to tease out from my noble friend the Minister a little more on the deal with Rwanda and what discussions the Government have had with its Government about the guaranteed freedom of people whom we are sending there and their ability, once they are there, to return to their homelands if that is what they seek to do.

For too long as a country, our successive Governments have shirked our responsibilities by failing to enact a fair and enforceable policy on asylum and migration. Difficult and controversial though aspects of this Bill certainly are, it is a positive move to address this. I therefore welcome the Bill and will support it. If not this, then what?

20:03

[Lord Balfe (Con)]

My Lords, I too fully support this necessary Bill. I thank the trade unions UNISON and the RMT for their briefing. I have noticed over the years that the Labour Party no longer seems to mention unions; it may be a bit embarrassed that it might win the next election and God knows what it would do with this Bill. This week it has backpedalled a bit on what it might do with legislation that our Government are passing.

It has struck me that so much of this debate has been about refugees and not much about the people who live in Britain. They are not racist or dislike people, but this is a matter of democracy; the people of Britain are fed up to the back teeth with a Government who appear unable to control the boats. It is as simple as that. They are not against legal migration or immigration, but they fail to understand how we can have a Government who cannot manage to stop a dinghy in the middle of a bit of sea. In many ways, this is a matter of democracy and fairness to many people. The people who have welcomed refugees from Ukraine and Afghanistan have done so because they see them as legitimate refugees. These people are not.

We have heard a lot about international obligations. We had an international obligation to the European Union, but the people revolted against it. There are all sorts of international obligations—to NATO, the Council of Europe and the United Nations. While we are at it, I remind noble Lords that Churchill, who is always quoted as being for the Council of Europe, was basically pretty disinterested in it. All the work on it was done by Ernie Bevin, the Labour Foreign Secretary. Churchill showed virtually no interest in the Council of Europe, but he did admittedly read a couple of speeches which I doubt he understood. Let us get away from this idea that Churchill and Maxwell Fyfe were the great godfathers of international co-operation, which cannot be broken.

Time has moved on. The refugee system set up in the late 1940s was to deal with the forcible removal of citizens of German background from Poland and Czechoslovakia. It had nothing to do with migration from Africa or anywhere else like that. In my earlier years in this House, I sat on the EU External Affairs Sub-Committee, until the Whips decided to get rid of me. One of the things we looked at was Operation Sophia, the EU operation on migrants. The sub-committee titled its report Operation Sophia: A Failed Mission, because it found that we could not control the boats in the Mediterranean.

My main worry about this Bill is not that it is too stringent but that it will not work. The key to making it work is that the Government must somehow find a way of stopping the boats. It is as simple as that. If you cannot get across the channel, you will not try, but if you are told that you will wait for 10 years before being deported, of course you will come across, because you will think, “Oh, well, there’ll be a couple more government changes before then. They’ll probably get fed up and run out of money, and we’ll all be allowed to stay”. I say to the Minister that the key to this is working out a way of stopping the boats. Unlike Australia, we do not have a nearby island on which we can put people. We could try Ascension Island, but I do not think there is anything much closer. We have to make it clear that there is no future in landing in the UK.

On the two unions I mentioned, we must make it clear that the legislation will not give powers to anyone to ask social care workers, UNISON workers or railway workers to perform illegal acts. They cannot be subject to being asked to do things that are in any way dubious. I hope an indemnity will be written in for them if they are.

I am pleased to support this Bill. I hope it works, but the key is to stop the boats crossing the channel.

20:10

[Lord Farmer (Con)]

My Lords, it is a pleasure to follow the wisdom of my noble friend Lord Balfe.

Defence of the realm is the first duty of government, so this Bill is essential if unpalatable. Without control over our own borders, Parliament, lawmaking and evidence-based policy become side-shows. It is not dehumanising for our Government to strain every sinew to stop the boats; we do not want anyone else dying in a flimsy boat in our waters. This trade is doing untold harm to our country as well as to those putting family fortunes and precious lives into the hands of people smugglers. What is being traded is not simply money for unsafe passage; it is also our physical and social infrastructure.

Many speaking against today’s Bill habitually, and rightly, hold this Government to account for lack of housing and access to essential services—particularly children’s social care but also family doctors, education and everything else our people rely on for quality of life. Can I ask my noble friend the Minister if he can provide any detail as to the current strain on children’s social services? Are there any projections of how this could worsen without action?

One of the first rules of economics is that wants are unlimited but resources to satisfy them are limited. The basic instinct of many here is to scoop up the dispossessed, especially vulnerable children, and give them the benefits of living in Britain. However, whilst we might want to do that, we need to pay attention to the electorate. It is not pandering to ask what people who voted for this Government want Ministers to prioritise; over two-fifths said their second-greatest concern, after the cost of living, is illegal migration routes such as small boats; more than those who said NHS waiting lists.

We are heading in the right direction in an incredibly difficult area of social policy, but we cannot be half-hearted. The small boats’ business model is ruthlessly pursued; therefore, this Bill must not be so watered down that the loopholes are big enough to drive an armada through.

The electorate are not closet little Englanders—and I choose my words carefully. Scotland has taken a disproportionately low number of asylum seekers, while England has stepped up to accept most of those entering through safe and legal global routes, on which we have a proud recent record.

We are certainly not ducking out of the United Nations refugee convention and the UK’s international responsibilities. As we have heard, our country-specific routes have provided refuge for 150,000 people from Hong Kong, 160,000 Ukrainians and 25,000 Afghans forced to flee the Taliban. Another 50,000 people have come to the UK via non-specific country routes, including through the family reunion route for those with a qualifying family member in the UK. Yet, as we have heard, 74% of illegal arrivals are adult males, many of whom came directly from safe countries such as Albania, and all travelled through safe countries such as France where they should have claimed asylum.

Neither are the electorate heartless, but they are concerned about the £6 million daily cost of housing illegal migrants, and other expenses like the manpower needed to deal with them. I am in and out of prisons, and one reason they find it hard to maintain staffing levels is that Border Force absorbs so many of their trained officers.

As mentioned earlier, people are particularly concerned about the already stretched social services backdrop for British children, such as the lack of foster carers and other pressures, which mean that many are placed far from home in residential settings. Those who argue that unaccompanied children should automatically become looked after by local authorities and certainly not be sent back need to be wide-eyed about the knock-on effect this is already having. Children who are sent on ahead to benefit from the British system further strain our social care infrastructure and make it even harder to address current failings.

Commons amendments mean that return happens only if unaccompanied children’s countries of origin are safe, or they are to be reunited with their parents. Putting it bluntly, if parents are not dissuaded from sending their unaccompanied children on these boats, smugglers will likely focus their trade on this new area of weakness. The vast majority of illegal migrants are not pregnant women and children, but that could change if we do anything to provide a magnet to attract them; we cannot tread so timidly as to be ineffectual.

Every day, people on the coast are dealing directly with this growing problem of illegal migrants, who have to be housed and medically treated, sometimes as a result of their perilous journey. I am sure this Bill will attract an abundance of amendments, but these should not be laid cynically to prevent progress on small boats before the next election. We, and the electorate, need action this day.

20:15

[Baroness Hoey (Non-Afl)]

My Lords, it is good that one thing seems to unite the whole House, and that is the fact that we all deplore the backlog and agree on the need for it to be addressed. The noble Baroness, Lady Bennett, mentioned all of the Conservative ex-Home Secretaries who were responsible, but going back much further during the 13 years of the Labour Government we had exactly the same problem—I remember as a constituency MP this was one of the issues that came up time after time.

I will be supporting this Bill in its Second Reading tonight and will be opposing the wrecking amendment. It is important that the convention to allow government Bills to have a Second Reading is adhered to, no matter how strongly we may feel about the legislation. We will all have the right to amend this Bill—as normal, we can table amendments and vote on them— and I may put down some amendments myself. For me, the principal aim of this legislation is to act to stop the small boats coming here in the first place.

Around 18 months ago, I had a three-hour debate here on migrants, sadly on the day that 27 lives were lost crossing the channel, and much was said then about how that could never be allowed to happen again. Since then, the numbers coming over on dinghies have escalated: in 2021 when I spoke, around 28,500 people had come through already; in 2022, there were 45,755; and, from 2018 until now, nearly 100,000 people have arrived at Dover. It is legitimate to say that our country has lost control of our own borders—certainly that is what the public think when they look at the pictures on television.

Some of these new arrivals—not many, but some—have been identified as a terrorist threat, and many have disappeared with us having no idea where they have gone to or what they are up to. The security of our own country must be a priority of government, and so must the social cohesion of our communities. Moving hundreds of mainly young men—I often think “Where are all the women?”—into areas where they will not be able to intermix is a recipe for problems. The public are not stupid, nor are the vast majority prejudiced against genuine asylum seekers, but they see at first hand the impact on their community and know that it is unsustainable.

I visited Dover two years ago to see for myself how the arrivals are processed. We cannot ignore the fact that the way we treat arrivals is far superior to what happens in France or elsewhere. Therefore, we cannot ignore that there is a pull factor to the United Kingdom; otherwise, I cannot see why so many want to leave the safe countries that they have come to in order to come here. Of course, there are some with family connections, but we already operate a system that would allow legal entry for them—maybe that can be looked at to make it better.

Those who manage the boats—the people smugglers —are well acquainted with what happens in our own country. They know that there are at least five different avenues to challenge a negative asylum claim result, and if all that fails, another asylum claim can simply be launched in a fresh application. Then we see that when someone who commits a hideous crime such as murder here is being deported, one of the many agencies will assemble a mass of MPs, and probably noble Lords, to stop the deportation—all of which is usually paid for by public money and legal aid. We cannot go on with people being allowed to bring multiple claims and judicial reviews. It is a lawyers’ paradise, but it is the hard-working British taxpayer bearing the cost.

Making it clear, as the Bill does, that if you come here illegally you will not be considered for asylum and that you will be deported will be a deterrent. I want to see fulfilled the commitment given by the Home Secretary that, once the small boats have been stopped, the Government will look at more safe and legal routes for genuine asylum seekers. I want that to happen, and we will keep an eye on this to make sure that it does. However, we really need to differentiate between economic migrants, refugees and asylum seekers. Even if some noble Lords do not differentiate, the public do, and that is what is important. It is also important to note that people have complained about the language used by some Ministers. Sometimes the language used by people supporting the Bill—who are making some quite rational and sensible points—is then almost portrayed as racist. We have to be careful about our language just as much.

In my view, the reality is that only tough and unambiguous legislation will stand any chance of succeeding and dissuading people from risking their lives by jumping into dinghies and heading for Britain in the expectation that, once here, they will be permitted to stay. We have to send a signal that we are not an open door, and that we will not continue to allow the industry of lawyers making millions from the whole asylum system to continue. The Government are unwise, I think, to seek to give the impression that the Bill will solve all our illegal immigration problems—it will not. However, it certainly is a start, and we have to try. The Bill is now with us, and with some improvements, it should be supported.

20:21

[Lord Kirkhope of Harrogate (Con)]

My Lords, “Stop the boats” is a worthy aim, and the Prime Minister is right to consider it a priority of the Government, but the Bill as currently written will not achieve it. Let me assure my noble friend straightaway that, although I have great concerns about this text, I will not be opposing the Bill’s Second Reading today. My concerns are numerous, and my probing questions require some clear answers from my noble friend. My remarks are made partly from my background as an Immigration Minister in the UK, partly as a former spokesperson in the European Parliament, and partly as a lawyer—not a lefty lawyer.

I begin by telling my noble friend that the ways chosen by the Government to alleviate the undoubted suffering of persecuted people fleeing tyranny will have the opposite outcomes to those suggested, and in implementation they will both break solemn laws and treaties and provide greater sustenance to the real criminals—the people traffickers and smugglers—who should be our first targets. The number of detected human trafficking offences has increased substantially in recent years, and we must not allow them to profit from vulnerable people. Why are we not doing more to catch these real criminals, some of whom are here in the UK?

As a lawyer, my noble friend must understand that I will never vote in favour of our Government breaking the law—and I trust that it is the same situation for him. The Government have claimed that they have taken advice from the “finest legal minds” in this country. Can he please name these fine legal minds? To clarify, I am satisfied, as is the UNHCR and other organisations, that no asylum seeker per se can be illegal. There is a clear difference, as my noble friend ought to know, between migrants who come here illicitly or deceitfully and are in breach of our tight Immigration Rules, and asylum seekers who present here and claim asylum under the strict criteria of the 1951 UN Convention on Refugees. In the first case, those who break our Immigration Rules should and must be deported speedily. In the second case, applicants for asylum should be quickly put to proof that they meet the fundamental criteria to be granted refuge. If they cannot, they should then be returned to whence they came.

When I was the Minister in 1996, I committed extra resources to the removal process, because I believed that our system must be seen by our people as firm but fair. We had to sometimes apply pressure on foreign Governments to achieve that. Those who succeeded in complying or proving their status were afforded the traditional and vital hospitality that this country was, until now, noted for. The Government are instead trying to recategorise asylum seekers as themselves being criminals, before their cases are even heard. They are using extreme rhetoric and, in implementing their Rwandan scheme, flagrantly ignoring laws—not only the 1951 refugee convention but other international agreements and, of course, the European Convention on Human Rights.

Regarding the Rwanda scheme, the Bill sets out to diminish the UK courts’ powers to suspend deportation and sets a dangerous precedent about the way in which they look at judicial review. As a lawyer, can my noble friend really defend this behaviour? When he replies, can he please give us the precise details of that part of the agreement which obliges the UK to take Rwandan asylum seekers back here? I refer him to section 16 of the memorandum of understanding.

Changes to the Bill were made in the House of Commons. Some were made in deference to extreme demands; one was also made relating to the issue of safe and legal routes to this country for asylum seekers. We are all aware of those routes, which come from UN programmes. Indeed, I was the Minister responsible for that from Bosnia in 1996. We are also aware of special UK programmes from favoured countries. Noting the wish of the Government to have an annual limit on such arrivals, how can my noble friend describe what the new arrangements might look like? The concession in the Commons does not really give us much to go on.

All UK embassies and consulates, in my view, should be a potential application post for entry where processing can take place. That is the least we should accept. Of course, the Foreign Office maintains a list of safe countries, and I accept that it will be more difficult for those from such countries to meet the criteria for asylum, but the opportunities for applicants must be spread across our presence, wherever in the world it might be. We need to increase our resources to deal with cases quickly.

Let us go back, finally, to the channel and the boats. I was a drafter of the Dublin agreements when we were in the EU; they at least made it easier to send back asylum seekers within the law. Since we have left the EU, we must rely on bilaterals with our neighbours. I welcome our discussions with the French, but these need to go further, with good will on both sides. Breaking international law certainly will not help. We also need to become reassociated with new EU initiatives to handle the large number of migrants who try to enter the Schengen area every year. Together, we have a better chance of achieving this.

There are various ways in which we can bring about change to protect lives and our borders at the same time, but that does not include breaking international law; leaving the European Convention on Human Rights; curtailing the powers of the UK courts; criminalising innocent victims; and harming as a result our race and community relations in the UK, which a lot of us have worked so hard over many years to improve.

20:28

[Lord Touhig (Lab)]

My Lords, I am delighted to follow the noble Lord, Lord Kirkhope, who made one of the best speeches we have had in this debate. He made it very clear why this is a bad piece of legislation.

“Across Europe, we live in times in which feelings that so many of us had thought outdated now appear to be re-emerging and spreading”. Pope Francis spoke those words when he reflected on the rising tide of intolerance on our continent. He went on to talk about the feelings of suspicion, fear, contempt and even hatred towards individuals or groups who are judged to be different based on their ethnicity, nationality or religion. Britain will face a state of moral decline if bigotry, intolerance and hatred feel at home in our country. Intolerance of people because they are different will dehumanise our society.

Recently, we have seen politicians stoking up intolerance of refugees and migrants, but the Britain of my lifetime has been a beacon of freedom, tolerance and justice, and that is how I want it to remain. British people have actively built links across communities, challenging hatred, welcoming refugees and standing up for those who are victimised. I believe we have seen no greater evidence of this harmony, tolerance and community than the scenes we have witnessed across the country in the last few days following the Coronation of the King and Queen.

It is a privilege to sit in this place, but with that privilege goes a duty not to allow vile ideals to grow and spread without challenge. The great social reformer Leo Abse MP, who was a dear friend of mine, once said: “Tolerate everyone, tolerate everything, but never ever tolerate the intolerant”.

I believe we must seek to resolve the issue of migrants crossing the channel in small boats. Several of us from this House and the other place raised this matter when we met French parliamentarians in July, and we urged them to press their Government to work with ours to find a common approach and see what we can do. But I very much regret that this piece of populist legislation is no answer and will solve nothing. Rather, it will stoke up ill-feeling towards some of the most vulnerable and desperate people on the planet—refugees—and all for short-term gain. I ask the architect of this Bill to do one thing: to heed the words of Conservative Prime Minister Harold Macmillan, who said:

“History is apt to judge harshly those who sacrifice tomorrow for today”.


My especial concern about this Bill is the awful impact it will have on unaccompanied migrant children. These refugee children not only have need of our protection but are entitled to it, because we have ratified the UN Convention on the Rights of the Child. Yet across our continent, the health and well-being of unaccompanied refugee children is being compromised, as I well know from a report I did when I was a member of the Council of Europe. Thousands of refugee youngsters are suffering; they are being abused, they are being trafficked, they are self-harming, and there is plenty of evidence that some are taking their own lives.

We must challenge those using toxic rhetoric about migration and displaying intolerance and prejudice which violates basic human rights. Political point-scoring about refugees, most especially refugee migrant children, should not be allowed to deny these children the help they need.

We should all be concerned about this Bill, because the Government do not have a good record of dealing with unaccompanied migrant children. Some 4,500 unaccompanied migrant children, some as young as 10, have been placed in hotels; 200 have gone missing and have not been seen again. Section 20 of the Children Act 1989 gives local councils alone statutory child protection powers, which include caring for unaccompanied migrant children. It does not give such powers to the Home Office.

There appears to be no legal basis for placing unaccompanied children in hotels operated by the Home Office. I twice attempted to discover which Act of Parliament has allowed the Government to do this; indeed, I asked the Minister last week. It is a simple question, and I ask it again: which Act of Parliament allows the Government to put these children in hotels?

This Bill will make the plight of unaccompanied migrant children even worse, denying them the right to claim refugee protection and making provision for them to be detained; and it will allow them to be removed from this country, despite their being youngsters unaccompanied by an adult. Is the United Kingdom seriously going to deport traumatised, in-need and unprotected children? If we do, shame, shame, shame on us.

20:33

[Lord Morrow (DUP)]

My Lords, there is a legitimate debate to be had about how the UK manages its borders, and like every other noble Lord here, I have opinions on that too. However, it should exclude those who are already subjected to abuse through the heinous crime of modern slavery.

A former Prime Minister said in the other place:

“It has always been important to separate modern slavery from immigration status”.—[Official Report, Commons, 26/4/23; col. 809.]


Regrettably, this Bill brings modern slavery into the heart of the immigration debate through Clauses 21 to 28, and it is using a sledgehammer to crack a nut.

The UK has had a proud record of seeking to protect victims, prevent modern slavery and prosecute traffickers—the three Ps, based on the UN Palermo Protocol. I am pleased to say that the Bill I introduced in 2013 in Northern Ireland, which passed in 2015, has played its part. It is therefore with great sadness and dismay that I contemplate the outcome of this Bill for victims across the United Kingdom and in Northern Ireland particularly. The Bill does not measure up to the three Ps: we are not protecting victims and we cannot prosecute the perpetrators of these crimes, without which we cannot prevent exploitation.

The modern slavery strategies of the devolved nations will go up in smoke, without any consultation, and the ability to care for victims under devolved legislation is undermined by the Bill. The Minister may say that these measures are necessary to prevent abuse. We heard that last year in the debate on Part 5 of the Nationality and Borders Act, which came into effect only at the end of January. We know that, since then, the number of victims who have received a reasonable grounds decision has plummeted. In the last quarter, where the Home Office’s new guidance applied for two out of the three months, only 49% of adults received a positive reasonable grounds decision, compared with 87% in 2022.

I expect the Minister might refer in summing up to the number of people who are referred into the NRM from immigration detention. The Minister, in response to a PQ tabled by the noble Lord, Lord McColl, argued that it was individuals arriving by small boats who are referred from detention who are abusing the system. No one self-refers into the NRM; it is first responders who refer, based on evidence of exploitation.

Of course, we do not want people abusing the system. However, the number of people who are referred from detention is small, relative both to the number of people who come across the channel and to the number referred into the NRM. The Home Office admits that the number of decision-makers has not kept up with referrals, leading to long delays in decision-making.

All this leads me to conclude that Clauses 21 to 28 are disproportionate and will negatively impact genuine victims. I hope that the Minister will update the House on how many referrals there have been from detention in the first quarter after the NBA reforms.

Finally, I come back to Northern Ireland. The Northern Ireland Human Rights Commission is of the view that the EU trafficking directive rights still apply to victims in Northern Ireland under the protocol. The Government have argued—wrongly, in my opinion—that they can deprive victims of support on public order grounds under the European convention against human trafficking. In Northern Ireland, victims have another recourse: Article 11 of the trafficking directive. I hope the Minister will address this issue as he sets out the Bill’s impact on victims in the devolved Administrations.

20:38

[Baroness Lawlor (Con)]

My Lords, it is no easy matter to follow so many of your Lordships, who have raised some difficult and problematic questions about the Bill. Can it, as it aims, prevent and deter migration, particularly by unsafe and illegal routes? Does it comply with UK and international law? Some noble Lords have raised interesting questions in supporting the noble Lord, Lord Paddick, in wanting to see it gone.

I agree that this is a tough and apparently uncompromising measure: not only does it oblige the Home Secretary to detain and remove those arriving in breach of immigration controls, it prohibits a challenge on human rights or asylum-seeking grounds, disapplies some modern-day slavery protections, and bans those subject to Clause 2 from gaining immigration or citizenship status in future. It also seeks, as your Lordships have pointed out, to avoid the prospect of our own courts or the European Court of Human Rights in Strasbourg holding up removal.

However, the Bill is necessary and proportionate on a number of grounds: for the functioning of our democracy under the rule of law—laws made in Westminster; to take account of the changed circumstances since the 1950s and the new character of immigration into Europe in general; and for the effective working of the asylum system, as so many of your Lordships wish.

Our laws are made in Parliament. Our judges apply them and, where necessary, interpret them, but ultimately Parliament, not the judiciary, must legislate. It does so on the authority of the people, who vote and choose a Government with a particular mandate. The voters have made it clear on a number of occasions that they want the borders controlled, and on this Bill, the House of Commons has given strong backing, with a majority, as has been said, of around 60 in most Divisions. I follow some noble Lords in saying that it is not for this Chamber to reverse the direction of policy backed by voters, the Government and MPs, but of course there will be room to improve the measure.

Circumstances and costs have changed significantly since the pioneering agreements about which your Lordships have spoken so illuminatingly. Not only has international travel risen to mass proportions, but the costs of immigration have also risen, far beyond what we could have imagined in those pioneering days when Parliament first debated Beveridge’s blueprint for the welfare state. Then, in 1943, the premise was that benefit, and the benefit system, would depend on individual contribution. Each individual paid a contribution and benefit was linked to it, although there was discretionary provision for exceptional assistance. By 1951, the year of the convention, potential deviation from the contributory principle, even over such a thing as a qualifying period for old age pension, was a most serious matter of debate.

Today, the system is significantly different. It is more expensive and far more reliant on tax funding, with higher expectations for social security, healthcare and education. As families struggle to pay the bills, it is right to tackle the rising costs of illegal migration, for which we are all paying through an increased tax base for that and other things. I need not remind your Lordships that the UK is now at almost its highest tax extraction since the Second World War.

This is not a UK problem alone: the small boats may be, but not the general problem of people wanting to settle in western European countries. Already, as has been mentioned, Rule 39 of the European Court Rules is being reconsidered and reviewed, with representations from a number of member states. Although I wish the Government well with their transfer arrangements, there is less appetite for transfer or return agreements than may have existed 20 years ago. Immigration has moved centre stage in all our neighbouring countries. In France, President Macron’s immigration Bill is having a not very happy reception from left to right, with demonstrations in the streets. Earlier this month, the Italian Foreign Minister cancelled a trip to Paris because the French Interior Minister had said that the Italian Prime Minister was incapable of controlling migration. That was barely months after the dust settled on the diversion by Italy of a humanitarian ship carrying 300 refugees to France.

Those of us, and I am one of them, who want a safe and legal asylum system for people fleeing persecution and danger to life, and an immigration system that supports the UK’s economic needs, recognise that we must manage both effectively. Removing illegal migrants from this country while their applications are processed may sound drastic, but if the alternative is to billet them into local hotels or disused barracks, there is a danger of undermining social cohesion and the rule of law. The laws of this country matter. They are, and have been for centuries, fair and welcoming to those who flee persecution in their homelands, generous to the many thousands—including me—who came to this country to take advantage of its unparalleled opportunities.

Voters now want their borders controlled. I support this Bill because it is necessary to tackle a particular problem; because the UK, like its fellow European countries, must recognise the political imperative; and because it is a duty on all those responsible for fiscal and economic affairs to control expenditure. Above all, I support it because the laws which govern this country should protect the liberties of all its people, be fair and proportionate and have the support of the people in whose name the law is made.

20:45

[Lord Hunt of Kings Heath (Lab)]

My Lords, one of the few compensations of speaking so late is that it enables me to try to respond to some of the points made in this fascinating but, I think, worrying debate over the past few hours. The noble Lord, Lord Forsyth, is not here, but I will come back to the challenge he raised right at the beginning when he asked whether those who oppose to the Bill were not concerned about the plight of these poor people coming over at perilous cost, often to their lives, in these small boats, having been exploited by these international criminal gangs. Of course we are concerned about those people, but on whether this Bill is the right way to deal with the issue I have very severe doubts. The noble Lord, Lord Forsyth, also challenged us to come up with a coherent alternative, which I think is somewhat disingenuous, given the scepticism that so many of us have about whether this Bill will actually achieve its stated intentions.

The most reverend Primate the Archbishop of Canterbury really laid it out in the debate on 9 December. Why do we not hear more from the Government about having a rigorous approach to combating smugglers? Why do we not hear more about the provision of safe and legal ways for people to get here, receive assessment and, where appropriate, get protection? The most reverend Primate also argued for an update to the 1951 refugee convention to meet modern circumstances. It seems to me that international co-operation based on human rights is a much more effective way to develop a plan to deal with these issues.

Secondly, I want to come back to a point made right at the start of the debate by the noble and learned Lord, Lord Etherton. He referred to the fact that, under the Immigration Rules, there is no asylum visa route for an individual refugee to enter the UK and claim asylum. This means that, unless the person falls within one of the four settlement schemes or asylum is sought by someone who is already legally present in the UK, a refugee’s arrival in and entry into the UK will inevitably be illegal. As the noble and learned Lord said, this is therefore not a “small boats” Bill. The provisions in it will affect all who seek refugee status in this country and are entitled to protection under the 1951 convention.

Thirdly, I want to refer to the Home Secretary’s extraordinary intervention this morning, in which she sought to tell this House what she considers to be our duty. I think that this House is well able to make up its own mind on that. For me, upholding the rule of law and our international law obligations, preventing unfettered power being given to the Home Secretary through this Bill, questioning the retrospective nature of some of the Bill’s provisions and seeking to retain the protections contained in the Modern Slavery Act are matters that should weigh rather more heavily on our deliberations than the Home Secretary’s crude attempt to distract from her own lamentable performance by indulging in dog-whistle politics of the worst kind.

Fourthly, I want to question the Minister on the Government’s assertion in relation to modern slavery that the Bill is needed to prevent people gaming the system. The leading modern slavery charity, Hestia, which supported more than 2,700 victims in London last year, says that it has seen no evidence to suggest that the Government’s modern slavery process is being exploited by individuals seeking asylum in the UK. This is backed up by a number of other modern slavery charities that have written to us over the past few days. Just look at what the University of Nottingham and the Human Trafficking Foundation said:

“Victims of modern slavery may not know they have entered the UK illegally; traffickers may deliberately withhold information and documentation as a means of control and may have offered to arrange travel on behalf of those they are planning to exploit. Potential victims therefore may be unaware of their status or need for entry documentation, believing traffickers have arranged this for them”.


Earlier, the Minister spoke of the generosity of the British people, to which a number of noble Lords have referred. I agree but I suspect that that generosity extends to wanting to retain the protections that we have in the Modern Slavery Act. Rightly, the Government took great credit internationally for the provisions in the 2015 legislation—I applaud them for it—but now, they are ruining that. They are throwing it away recklessly and, with it, the protections for some of the most vulnerable people.

I will end by commenting on the amendment in the name of the noble Lord, Lord Paddick, which he spoke to with such force. I must say, it is interesting that the Liberal Democrats have always questioned the legitimacy of this Chamber, yet they seem to have rather changed their minds and now feel that it is legitimate for us to reject a Bill. That is not what we do. We have the ability to scrutinise this wretched Bill thoroughly; I hope that we will do so.

20:51

[Lord Moylan (Con)]

My Lords, one of the striking things about this interesting debate is that, in many cases, noble Lords on all sides of the Chamber have spoken as if they were proceeding from a fundamental principle of great importance to them. For some, it was the vision of what our country is; for others, it was the universal principle of humanitarianism or a commitment to internationalism as a means of resolving problems. There were others, too, of course.

My fundamental starting point is more mundane: the international legal principle that no country is obliged to admit foreign nationals and that, if one does so, it may impose conditions on that entry. Of course, we in this country mitigate that right—our right to refuse to admit foreign nationals—in ways that we have chosen to do in the past. For example, when we were members of the European Union, we gave free access to this country to citizens of EU member states. Another way in which we have abridged that international right, of course, is by entering into the refugee convention. Inevitably, these sorts of arrangements involve some sort of international agreement and so can be categorised as falling under the heading of international law.

I am not a lawyer, nor making a legal point, but we must take account, as my noble friend Lord Balfe said—he has just disappeared—of the circumstances in which we entered into those arrangements and whether those circumstances continue to apply, because we have a degree of flexibility about how we apply them in the light of changing circumstances. The circumstances in which we entered the refugee convention contemplated broadly the care of often large numbers of people displaced by war and other catastrophes, usually in adjacent countries and on a temporary basis, until they could return safely to their home. A lot of people would ask how, by means of the same convention, we are having a debate this evening about transcontinental travel facilitated by profitable travel agencies that are run as businesses—they may be criminal enterprises, but they are profitable travel agencies that are run as businesses—with a view to permanent settlement. This is a very long way indeed from where we started.

Some people may say, “The world has changed since we entered the convention, and this is what it is like now. We should share our burden”. I fully accept arguments that Britain, as a leading international power, should share burdens. There are ways in which we can share burdens; by doing things for people who are displaced, not necessarily by their coming to this country but by helping them in the places where they are displaced. We could do more on that front.

I cannot resist saying that I find it very hard to accept comments from many noble Lords about the European Convention on Human Rights when we so lightly pass over the fact that the rights of our own people in Northern Ireland to a say in the laws that they live under is abridged by the Northern Ireland protocol and by the Windsor Framework that has followed it. When it suits us, we are all for the European Convention on Human Rights, but we are willing to blink it when it does not. There is a degree of double sightedness on that.

It is not all good news for my noble friend on the Front Bench; I have some concerns about the Bill, including that, as has been alluded to glancingly by some noble Lords, it deliberately catches some British citizens within its scope. It is possible to be a British citizen and still be an illegal migrant under the Bill, denied access to British citizenship by being an illegal migrant. That is because the drafters of the Bill—from the Home Office, I assume—as so often in the past, have deliberately conflated the concepts of naturalisation and registration. They have treated them separately, in separate clauses, but have imposed the same penalties and the same process. Not for the first time I remind noble Lords that the two things are entirely different. Naturalisation is a concession whereby the British Government gives citizenship to people of foreign nationality. Registration, introduced by the post-war Labour Government, is a process whereby the British state acknowledges an existing right to British citizenship which has been difficult to establish, either through the vagueness of circumstances or the want of proper documentation. It is akin to the sort of blunders that we fell into which led to the Windrush scandal.

The Bill needs to be amended and looked at very carefully to ensure that those entitled to British citizenship by way of registration are not denied those rights because they arrive in the country irregularly. I hope that other noble Lords will come back to this in Committee.

20:58

[Lord Bilimoria (CB)]

My Lords, I declare my interest as an immigrant— a proud immigrant. This country has given me so many opportunities; to build from scratch a consumer brand loved by this country, Cobra Beer, a household name in the UK; to be the youngest university chancellor in this country from 2005 to 2010, at the University of West London; to be the first Indian-born chancellor of a Russell group university in this country, the University of Birmingham, which is the third-largest university in this country; to join this House as one of its three youngest Peers, 17 years ago; and to be the first Zoroastrian Parsi to sit in this House. I hail from the smallest minority community in the world, the Zoroastrian Parsis. There are just 100,000 of us. We fled from Iran—Persia in those days—to escape religious persecution. We went to India, and I am proud to say that, over the centuries, per capita of achievement it is probably one of the most successful communities in the world.

That is because good immigration has always worked. The 14% of immigrants here contribute so much to make sure that this country, with 1% of the world’s population, is still the sixth largest economy in the world. The immigrants in this country and their children are reaching the very top. There is no better example than our Prime Minister, Rishi Sunak.

The Minister started the debate by saying that the purpose of the Illegal Migration Bill is

“to prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes, by requiring the removal from the United Kingdom”.

Yet, as we have heard from so many noble Lords today, the Bill creates a hostile image of immigration, even more so than Theresa May did. From 2010 to 2019, when she was Home Secretary and Prime Minister, she created a hostile image of, and approach to, immigration. For example, in 2012 she removed the two-year post-graduation work visa for international students, which I spearheaded in 2007-08. Boris Johnson brought it back, to start again in 2021.

The Bill is focusing on the boats, one of the Prime Minister’s five pledges. We all want the boats to stop. That is not the question. It is how we do it that matters: not in an inhuman way, not in a way that breaches international law, not in a way that breaches international commitments—the Bar Council considers that the Bill as currently drafted is incompatible with the principles which underlie the rule of law—and not in a way that removes this country’s centuries-old reputation for fairness and justice, which is respected around the world.

The Bill is meant to be a deterrent, but let us put this in perspective. The 45,000 people who came across in those boats last year make up less than 10% of the net migration of 500,000 people into this country. A fear of immigration is created—a fear that led to David Cameron and Theresa May wanting to bring it down to the tens of thousands. Where are we, in the tens of thousands? It is at 500,000. It is a fear of immigration created, for example, by Angela Merkel, when she said she would allow 1 million refugees to settle in Germany in 2015 at the height of the Syrian crisis. Whether we like it or not, that fear played a major part in the Brexit vote turning out the way it did.

Yet look at today: according to a study brought out by King’s College London on 23 February this year, the UK public have among the most positive attitudes to immigration. The study ranks the country at the top of an international league table as the most accepting of new arrivals. So where is this will of the people? There it is. This is the latest study that has come out.

Will the Minister please explain to me why our international students are included in the net migration figures? International students have now reached a record high of 680,000, and this is primarily because of the two-year post-graduation work visa being brought in. They are not immigrants; on the whole, they return to their countries. In fact, if you look at the immigration figures, the highest number is of students—it is higher than people who come to work. This is because the UN says that, within one year, you have to categorise people as immigrants. Even a one-year master’s degree means an international student is categorised as an immigrant. Other countries exclude them from their net migration figures.

Why are the Government making a rod for their own backs? Why are international students being used in this way? Is it being used to create a fear of migration? Is it being used to create a hostile approach to immigration? I just do not understand it. I am like a stuck record: in his winding up, please can the Minister address this point? I am co-chair of the All-Party Group on International Students and president for the UK Council of International Student Affairs. International students bring £30 billion into this country and are one of our strongest elements of soft power.

To conclude, of course we want to address the asylum claims: the backlog of 138,000 is unacceptable, and we need to process them quicker. Of course we need to address, tackle, and stop the illegal immigration and these awful, dangerous and tragic small boats crossing the channel. But let us never take for granted the good immigration that has benefited this country, and for which we should always be grateful and appreciative: the good immigration has made Great Britain great.

21:04

[Baroness Stroud (Con)]

My Lords, it is a privilege to speak following the noble Lord, Lord Bilimoria, particularly on this issue of illegal migration which cuts right to the core of who we are as a nation. I want to use my time to ask three questions. First, will the stated objective of this Bill be achieved? Secondly, do we have the right target in our sights? Thirdly, are there things that could be done to ensure the new system reflects the values of our nation?

First, will the stated objective of this Bill be achieved? As we have heard over and again, the purpose of this Bill is

“to prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes”.

The fact that this Bill has very similar objectives to the previous one requires us to take a hard look at what we are doing and ask ourselves whether it will be effective.

I agree with the premise—as do most of us in this House—of both last year’s Bill and this year’s Illegal Migration Bill that we must take back control of our borders and break the business model of people-smuggling networks. However, my concern is whether a focus on deterrence will in fact achieve these objectives. The Government themselves have admitted that the evidence of the efficacy of deterrence measures is limited. So, presuming that this legislation has only limited efficacy and that channel crossings continue in some form or another after this Bill has been passed, I ask my noble friend the Minister to outline how His Majesty’s Government intend to implement the mass detention of irregular arrivals that will continue and how they will support those who are not able to be removed after 28 days of detention because of a lack of returns agreements.

In international terms, we are taking an unorthodox approach to our asylum system. It is clear that we are not confident this approach will be effective, so I also ask my noble friend the Minister whether he would include a review mechanism in this Bill so that Parliament has a chance to evaluate the success of this novel approach and, if it proves to be ineffective, to disapply it.

The second question is whether we have the right target in our sights. With this piece of legislation, our sights are firmly set on the asylum seeker and the trafficked, not the trafficker. If we were to put as much energy into targeting the real criminals, into imprisoning the criminal gangs, we would be standing on firmer ground. It is not illegal to cross a border and claim asylum —this is a protection set out in the refugee convention of 1951—we are choosing to make it illegal. Over 70% of the people who come via these routes are granted asylum by our own system and our own definitions.

But we are also dismantling much of the modern day slavery legislation by going after those being trafficked rather than the traffickers. The removal and exclusion from support of those victims who have been exploited in the UK will drive victims underground, making them less likely to come forward. This will not only hinder victims’ recovery but damage the chances for prosecutions. Without support and if removed to another country, most victims will be unable to co-operate with investigations. I believe that this House will want to pick up the amendments tabled by the right honourable Iain Duncan Smith and Theresa May in the other place.

But I also want to engage constructively with this Bill, so I ask whether there are things that could be done to ensure the new system reflects the values of our nation. We have always been a place that welcomes those who are genuinely in need. Our commitment to the refugee is founded on our Christian heritage. There has been much said during the passage of this Bill about safe and legal routes. In this Chamber, during the passing of the Nationality and Borders Bill, I supported an amendment that would make provision for 10,000 to come to the UK through safe and legal routes as a way of ensuring we created the infrastructure that would care for people properly rather than us lurching from one emergency situation to another. The Government have indicated they are willing to do this, but there are some factors that it would be worth us exploring together as part of this.

We will need assurance that these safe and legal routes will be set up to welcome those who need protection whatever country they come from, and will not just be country-specific schemes, be they for Afghanistan, Yemen and most recently Sudan. We need to work with the grain of local communities, not against them. A recent study from More in Common showed that, when community sponsorship of refugees is an option, a majority of people are in favour of accepting more refugees into the UK. I therefore encourage the Minister to explore safe routes that include schemes such as Homes for Ukraine that would save the taxpayer millions while also allowing refugees to integrate into British society.

Finally, as we have heard from others tonight, this is all part of a much bigger picture that will be resolved only as we reach for diplomatic solutions. Ultimately, stopping channel crossings and taking back control of our borders can be achieved only through diplomacy, not through domestic legislation. Therefore, I urge the Government to negotiate a returns agreement with France and the European Union and to lead the way in instigating a global solidarity pact with likeminded states that would update the international refugee system and make it fit for the 21st century.

I look forward to working as a House to support the Government to achieve their stated objective of stopping the boats, but doing so in a way that balances control with compassion. I believe we can find a way to put people smugglers out of business and end the exploitation of vulnerable people, while also ensuring that this new chapter in the story of the United Kingdom is founded on international responsibility and human dignity.

21:11

[Lord Jackson of Peterborough (Con)]

Your Lordships’ House will have an opportunity to scrutinise this very large and complex Bill and its details, so I will focus on general principles. Perversely, although I think this Bill is politically, constitutionally and morally an imperative, I agree with the comments made by the noble Lords, Lord Paddick and Lord Green of Deddington, because within the wider context it is only because we have a failed and dysfunctional legal migration regime that such a Bill is necessary, notwithstanding the geopolitical refugee crisis affecting the rich world.

The British people did not vote to take back control of our borders in 2016 for any Government to preside over a net migration figure of more than 500,000 each year, for special pleading from big business for more cheap foreign labour, for 5 million people on out of work benefits, for £1.9 billion per week spent on social benefits for working age people, for welfare dependency and the stalling of social mobility and productivity, and for pay and training for UK citizens to be reduced over time.

Actually, I predicted this. As Member of Parliament for Peterborough in 2006, in the wake of the European Union free movement directive, I made it clear that there would be serious ramifications on the delivery of public services. For that I was met by hyperbole and allegations of racism and xenophobia and of being a Little Englander—but even Tony Blair conceded that that piece of legislation was in error.

I would rather not support this Bill, and I agree with other speakers who have said that the British people are decent, fair, compassionate and welcoming. One need only look at the figures that the UNHCR produced that show that we are the second most welcoming country in Europe for refugees. Who does not believe that it takes great courage to cross continents to seek a better life and a better future for one’s family and children? However, it is naive and irresponsible to ignore our obligation to propose solutions based on real-world experience. Responsible government is about difficult choices and competing interests, and that is why the Liberal Democrats’ fatal amendment is both irresponsible and an abdication of our duty to respond to legitimate public concerns about this growing migration crisis.

It is also naive and foolhardy not to recognise that of course people traffickers will abuse and exploit the loopholes around modern slavery. I have to say respectfully to my former colleague, the former Prime Minister Theresa May, that she perhaps should have a word with the Home Secretary who presided over the drafting of the Modern Slavery Bill in 2015, because to ignore the ramifications and that exploitation is wrong. That said, I think that the amendments that she has proposed and that noble Lords have proposed are certainly worth looking at.

It has to be said that this House has no mandate whatever to block or wreck the Bill. It is a manifesto commitment from the 2019 general election. It is popular, has public support and was passed by a significant majority in the other place.

I agree with the right reverend Prelates that we need to legislate with compassion, but those of us who support the Bill are no less caring or empathetic to the real-world horrors of modern slavery and people trafficking. Frankly, I have to say as an Anglican that I find it dispiriting that the leaders of my own church, who were silent over the impact of 20 years of uncontrolled immigration, should seek to mischaracterise those of us who have the courage to support these bold measures as morally deficient. That is not the case.

My penultimate point is this. Much talk has been made of breaking international law. We should not regard supranational legal entities and their obligations as shibboleths and theological tablets never to be questioned. It may be unusual, but our dualist treaty regime in this country preserves the rights and duties of legislators against an overmighty Executive and a potentially politicised judiciary, and this House is part of that durable and well-understood constitutional settlement. After all, our first duty is the safety of our own citizens, of whatever background.

In conclusion, today we have heard much criticism, exaggeration, outrage, some intemperate language and cries of “Shame!”—but very few, if any, real, workable alternatives. It is a perfectly noble viewpoint to believe in open borders, mass migration to a country with the highest population density in Europe, a housing crisis, infrastructure pressures and a debt mountain, but let us be honest about it: what does that policy really mean? The shame would be to do nothing, give sustenance to the evil people traffickers, betray the British people, betray those who came here legally and hope that it will all go away. Well, it will not. I welcome and support the Bill, and I wish Ministers well in its possibly quite difficult journey through this House.

21:17

[Lord Frost (Con)]

My Lords, it has been a long day and I will not detain the House for too long before the winding-up speeches. However, opportunities to whole- heartedly support the Government on their legislation arise perhaps less often than I would ideally wish and, when I do so, the Government have developed a distressing habit of filleting or spiking the legislation afterwards. However, I am very confident that that will not happen on this occasion, so I want to take this opportunity to speak strongly in support of the Bill.

The basic principle that we must not forget is that a democratic nation state such as ours has, and should have, the right to control its borders and determine who gets to live here and on what terms. Until quite recently that would have been an uncontroversial statement—and, in my experience, it still is the further one gets from London SW1. Still, in recent years this country lost that right as regards EU citizens, and the general principle has been subject to sustained attack from those who perhaps do not always see the point of international borders at all. The result of all this has been the difficulty that the Government face in enforcing their immigration laws and, in recent years, very high and unsustainable levels of legal migration.

As my noble friend Lord Moylan pointed out, the basic principle of the right to control borders is of course shaped by the many commitments that we have taken on, such as our membership of the ECHR, the refugee convention and much else, including our own sua sponte commitments on modern slavery. However, all those commitments must and indeed can be implemented only in a way that is in accordance with practical reality.

Governments do not have the luxury of being content with just words; they must deal in reality, not concepts. One obvious reality is that tens or perhaps hundreds of millions of people could establish an asylum claim if they could get to this country, and many want to. So, if we acquiesce in illegal arrivals, the numbers will continue to grow. If we open new legal routes, they will quickly be overwhelmed and we will be back to the illegal ones. It is simply not possible to make what has amounted to an open, unlimited offer to anyone who can get here.

That is why the Bill is necessary and why, if it becomes law, no one who arrives in this country illegally, with some reasonable but limited exceptions, will be allowed to stay here. Contrary to what some noble Lords have said tonight, that specific principle is strongly supported in this country. Indeed, YouGov polling from March shows that it is supported by an absolute majority of public opinion.

We are told by some who we have heard today that to enshrine these principles in a Bill is in some way—these words have been used during the day—shameful, inhuman, immoral or even evil. I disagree with that and actually rather resent it. It is with the greatest trepidation that I debate morality with the high prelates of the Church, but I cannot agree that we are not living up to our moral responsibility if some of us, in this fallen world, come to different judgments about the implications of the words of Jesus in Matthew, chapter 25.

We are told by others on the Benches opposite that, because everyone who gets to these shores has a potentially huge contribution to make to this country, it is immoral and self-defeating to turn them away. Of course I agree that every person who comes here has the same potential as every other human being. I do not think any of us believes that asylum seekers are bad people; they are people doing the best for themselves and their families. But everyone who gets here imposes a burden as well as making a contribution, and it is true to say that some communities have integrated into British society and life better than others. It is the job of the Government and of the British people to decide where the line should be drawn, and the Bill draws one element of it. There is nothing immoral in that; if you think there is, you must think it is immoral for British Governments to pay proper attention to the views of their own citizens.

We have also heard that the right way forward is to renegotiate the international framework covering refugees. That is certainly desirable, but anyone who thinks it could be done in the short term—or perhaps at all, on terms that we would wish to see—is kidding themselves, I am afraid. The same is true of those who think that spending vast sums on development or on mitigating so-called climate migration is going to do anything to deal with the real problem we face now.

All the arguments against the Bill are, I am sure, based on deep reflection and conviction but, in the end, I cannot think that they deal with the real-world problem. The real-world choice that faces this Government is simple. It is to choose to put in place an organised set of provisions for a limited number of genuine refugees, in numbers that this country can cope with, and make clear that others will not be able to stay; or to live with the current and worsening situation of an open-ended but de facto constrained arrangement for refugee arrivals, constrained not by any rational arrangements or judgments but by the readiness of those poor trafficked people to travel, to pay and deal with criminals, and to bear terrible risks.

There will certainly be important technical improvements that we can make to the Bill, and this House should certainly give it proper scrutiny, but none of that removes the real need for the fundamental principles behind it. I urge the Government not to be deterred by the arguments they have heard today but to push on with the Bill, and strain all the sinews of the state to deliver on it when it becomes law.

21:23

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I thank the House for allowing me to speak in the gap.

Only days ago, the King made solemn commitments to justice, equity and mercy—and here we are, dismissing those values in this Bill. I find it repugnant to hear the spurious use of market-force values as an argument for the Bill: that the need to crush traffickers, the supply side, involves having to crush demand, as though the demand were not human beings with needs. They are often people who have been persecuted or who have watched other members of their family being slaughtered. They may have suffered torture themselves and witnessed the women in their family being raped. But we have to crush demand, so to devise a scheme as cruel and as vicious as possible is necessary to deflect people from crossing. We have to devise a scheme that has no due process—which has been one of the fundamentals in our rule of law—and we are going to lump together those who are asylum seekers with those among them who possibly might be here simply to better themselves. The noble Lord, Lord Frost, has just talked about this, but described those people as being asylum seekers. The conflation of those who might be coming for economic reasons and those who are asylum seekers fleeing persecution is one of the problems of this Bill.

I want to speak to the fact that this Bill is having a huge impact on our global reputation. I am the director of an institute for the International Bar Association, so I travel to conferences regularly; I was only last week at the UN in New York. Judges and lawyers talk to me about their concerns with what is happening around issues of law in our country. They say, “What is happening to Britain—the Britain that led the world in championing the rule of law; that was the flagship nation in creating the rules-based order after World War II; that drafted the European Convention on Human Rights and was key to so many conventions, including the refugee convention, and created the model for the modern slavery legislation that is being taken up in other countries?” “We have always looked to Britain”, they say, “As a beacon that we have all been persuading our countries to follow, but what is happening?” We are putting at risk that reputation. Our stature in the world will be greatly damaged by Bills such as this and by our dismissal of our treaty obligations and commitment to international law. The fear expressed is that Britain, by showing a reckless disregard for law, will bring about the collapse of that rules-based system because in other countries authoritarianism is growing, as we know, and so many places will be only too happy to follow suit.

I remind us all of the law of unintended consequences: once you start unravelling these things—such as, for example, rule 39, which we have used since 2005; we used it only last year in relation to Russia’s invasion of Ukraine—it will be used as evidence that we have failed to comply with it when we come to bring people such as Putin before the international courts for war crimes. Please do not unravel law which has been so important in creating a unity across the globe that has been vital in securing justice and in our attempts to secure peace.

I advocate what the most reverend Primate the Archbishop has advocated: that we should cling to those international obligations and sets of principles, make use of them and engage with other countries to try to meet the challenges here. We should set up proper, swift systems to determine who are asylum seekers and who are not.

I hope this Bill will be amended out of existence because it is unworkable and unlawful, and it is immoral, I say to all of you. We have to ask ourselves: is this what we are standing for in the world?

21:28

[Baroness Gohir (CB)]

I thank noble Lords for being provided with the opportunity to speak in the gap. It is an honour to follow the noble Baroness, Lady Kennedy. I will focus my comments on pregnant migrant women. A lot has been said already by the noble Lord, Lord Cashman, the noble Baronesses, Lady Lister, Lady Sugg and Lady Brinton, and the right reverend Prelate the Bishop of Gloucester, and many others.

Like them, I am gravely concerned about the safety of pregnant women, new mothers and their babies. The legislation in its current form may result in them being detained indefinitely and being taken out of the UK. Pregnant women and new mothers are among the most vulnerable in society and we have a duty to safeguard them. We therefore need to provide them with the right nutrition, healthcare, and physical and mental health monitoring to detect problems.

Making them stay in overcrowded centres can increase the risk of infectious disease and result in poor mental health. They cannot be provided with the right care at the right time. Why cannot these small numbers of pregnant migrant women be housed in the community? I say that because, this morning, the Minister mentioned that most illegal migrants are men. What risks can these pregnant women pose in society? If I remember rightly, this morning it was mentioned that the measures in this Bill are needed to keep us safe.

The Government already have a terrible record on pregnant women who are detained. For example, women in prison have a probability of suffering stillbirth that is up to seven times higher than in the general population. Pregnant women returning from abroad during the Covid pandemic were put at risk when the Government made them stay in quarantine hotels. I remind this House of what happened to Amna Bibi: when she returned from Pakistan, she was in a quarantine hotel and asked for help, but someone decided that she had gone to the hospital too many times and, at 34 weeks, she lost her baby, nearly bled to death and was in intensive care.

As noble Lords will be aware, maternity disparities have had a lot of publicity. I declare an interest as the CEO of Muslim Women’s Network UK and an officer of the APPG on Muslim Women. We produced a report on maternity disparities that, like many other maternity reports and the statistics on maternity care, shows one thing very clearly: minoritised women and their babies have a higher mortality rate and are more likely to have a miscarriage. Women born outside the UK are more likely to have worse maternity outcomes.

The Government pledged to address these maternity inequalities, so how can they, on the one hand, say they will reduce harm for pregnant women, while, on the other, bring in legislation that will create a system that will cause harm to pregnant women and their babies? It is cruel, heartless and inhumane—I say to the noble Lord, Lord Frost, that I am using those words again, and I do not apologise for them. The medical and maternity experts all state that the government proposals are putting pregnant women and their babies at risk of physical and mental harm. Among them are the Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives, Doctors of the World, Maternity Action and many more. Disregarding expert opinion and safeguarding is shameful.

Timely, safe and adequate maternity care can be received only if pregnant women live in the community. The noble Lord, Lord Farmer, mentioned that the UK could become a magnet for pregnant women—I respectfully and strongly disagree with that point. Therefore, I urge the Government to do the right thing and not to detain pregnant women.

21:32

[Baroness Hamwee (LD)]

My Lords, the House will forgive me for not namechecking individual noble Lords. I have heard it said a number of times of the Bill that “This is not who we are as a nation”. This is also not how I used to think of the Conservative Party; I rarely agreed with it, but I respected it. I look to the Government to lead, not to stoke up both prejudice and fear. These are human beings who, in very large part, are fleeing conflict, torture, persecution and danger. They are human beings as we are, but I see no attempt to walk in their shoes and see each as an individual with his own character and history, or to see each child as a child—many of them vulnerable.

The Minister wrote to Peers, saying:

“As you will know, over 45,000 people illegally crossed the Channel in small boats last year, abusing our laws and asylum protections”.


No, I do not know that 45,000 people did that, but I do know that this is victim blaming. I acknowledge Refugees Welcome and other support groups and individuals, who see asylum seekers as people in need of support.

I know that the Bill is immoral, although it is presented as moral: “We must save people from the dangers of the channel”. Of course, but even if it will, what about the dangers from which asylum seekers are escaping? The very presentation of some so-called safe countries, designated in the Bill as safe for men or women only, indicates that the Government know the human rights problems, but there are no nuances or caveats. Safe and legal routes are not irrelevant, as suggested; they should be the precursor to legislation.

The Bill is misconceived. It will not act as a deterrent to asylum seekers, so it will not deter the traffickers. It will create a new market for smugglers among people removed to countries which are not appropriate.

The Modern Slavery Act should be strengthened, not weakened. In January, changes were introduced to address false slavery claims by bringing into force the Nationality and Borders Act, but it is far too soon to assess those changes. Allowing a victim to remain in the UK just so long as is necessary for a prosecution says a good deal about the Government’s refusal, against professional opinion, to understand that few victims are able to produce a complete statement without considerable support and often over a long period. How is that trauma-informed?

Noble Lords have spoken of giving traffickers another tool; they will be able to say, “Go to the police and you’ll be removed from the UK”. Why cast asylum seekers as the wrongdoers? Overstayers, who had visas, know they have no right to be here; they outnumber asylum seekers by many times. Of course, we have heard a lot about total migration numbers. I am grateful for the mention of the report by the Select Committee, which I am lucky enough to chair, on the way the Government should go on immigration.

The Government used to be good at soft power. What a clever strategy: to seek to load things on our nearest European neighbours. This refusal to acknowledge the global situation and to address what might truly be a fair share is the very opposite of seeking global co-operation. It is more than a closed door; it is drawing up the portcullis.

There is deep concern about the impacts on the land border between Northern Ireland and the Republic of Ireland; it is not apparent that the Government considered or consulted on that. In addition, how is the Bill perceived by minority communities in the UK? Let us not forget community cohesion and integration. It is clear that the benefits of diversity passed the Government by.

The Bill is illegal, and the House will, as always, be glad of its lawyers. Let us take its retrospective effect. Legal certainty requires clarity at the relevant time—which is not, in this case, 7 March 2023, with Parliament being taken for granted at that point. It is a central tenet of the rule of law. The Court of Appeal called it

“a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public”.

The Minister says that the Section 19 position is “legally untested”. I thought the Government were critical of people running off to the courts to test legality, and of the courts treading where the Government think they should not.

I confess that there is a good deal about the Bill that puzzles me: that there is a reliance on a writ of habeas corpus, which is about the lawfulness of detention, when the legislation makes the detention legal; and that the party that claimed to be good housekeepers does not focus first on the efficiency of the Home Office. Detention is used as instant punishment before any infringement is established. Legal avenues are blocked, and the courts are blocked from getting on with their job to a proper timetable. What happened to necessity and proportionality?

I could almost say, “Thank goodness the Bill will be unworkable” but for what it will mean for so many children and adults. It is not even as good as having a life on hold; they are driven towards exploitation, not protected from it, and driven to the underground economy. How much will we know of that? Presumably the numbers will not appear in the Home Office applications backlog, because the claims will be inadmissible and so not counted. It is immoral, misconceived and illegal.

Obviously, it is not possible to cover in a few minutes every point made, as the many organisations which have briefed us so extensively—and to which we will continue to look during later stages—will realise. A fundamentally unacceptable Bill does not become acceptable by amending it at the edges.

The Parliament Act is a red herring. Even if there were time to ram the same Bill through—it is not that straight- forward—there would be no time for implementation before the next election. To those who say that opponents of the Bill should be setting out their policy, I am sure that they would have said, in response to speeches setting out that policy, that this was not the time, especially given the Bill’s Short and Long Titles.

By the way, our policy is not to admit everyone. Like the most reverend Primate, my noble friend did not say we would.

Finally, perhaps the most egregious aspect of the Bill is that it deprives people of hope, and hope is so precious. My own default mode is to look for compromise and consensus, but I cannot do so here. I feel contaminated by the Bill.

21:40

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too will not attempt to namecheck everyone who has spoken in this debate. It has been a fascinating but a worrying debate and I thank all the many organisations that have sent briefings, many of which have been referred to during the debate.

The headnote for understanding the Bill is that it attacks the ability of people to come to the UK irregularly and claim asylum or make human rights claims. It shuts them out and imposes a duty of removal. In the absence of agreements on removal or readmission to their home or third countries, these people will remain in the UK without status, either in detention, potentially for an indefinite period, or supported at public expense because they are unable to work. It will manufacture a growing and potentially permanent population of people in the UK who are, for all practical purposes, unremovable, and who are a burden on the public purse. It is ineffective and it breaches international treaty commitments.

The Bill contains a number of things that disrupt the established relationship between the Government and the courts. For example, it revises the ability to seek liberty from being unlawfully detained. It also removes protection from people who are victims of trafficking, in order that they may be treated as irregular arrivals as well. In the media, noble Lords will see that the motivation for the Bill is the problem created by people crossing the English Channel in small boats, but in reality the Bill affects all people arriving irregularly. It also extends to human rights claims made by EU citizens in the UK, and that can affect their family life and their private life rights—I think this was a point made by the noble and learned Lord, Lord Etherton. I believe this will create additional problems in our relationships with EU member states.

All people in this House agree that small boat crossings should be stopped. Smugglers are profiting from the desperation of people risking their lives to reach our shores. Also, there is no doubt as to the size of the challenge in dealing with the number of asylum seekers already stuck in the system, as well as those making their way here right now. The main question we should address ourselves to when looking at the Bill is: will it make things better, or will it make them worse? Will it stop the dangerous crossings and lead to serious consequences for the people smugglers? Will it protect those most at risk from exploitation, violence and torture? Does it protect children? Does it help those we have made promises to, like the Afghan interpreters who missed the last flight from Kabul? Will it ensure that we create the safe routes that it is said asylum seekers must use instead of using channel crossings—safe routes that hardly exist at all? Does it deal with the large backlog of asylum claims which continues to build up, and will it prevent people from getting stuck in accommodation and hotels, waiting seemingly indefinitely for their asylum decision? Does it maintain our long-standing commitments to international co-operation and law? Does it maintain our international reputation as a fair country that takes our role in the international community seriously?

Members across the House have provided many answers to those questions. They have said that the Bill will not help, that it will hurt, and that it is indeed a worrying Bill. It will further damage our asylum system, trap more people in limbo within it, and result in even higher costs. It will hurt children, trafficked men and women and those fleeing war who are unable to take safe routes to get here. It will hurt our international reputation and our relations with countries across the world. It will not provide real consequences for the people smugglers profiting from human misery on our shores. We will work across the House to amend the Bill so that we maintain current levels of judicial oversight, live up to our international obligations and maintain the original principles of the Modern Slavery Act.

21:44

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

I am grateful to all noble Lords who have spoken. It is a measure of the importance of the issue before us that there have been some 80 speakers in this debate. As we have heard from noble Lords across the House, as well as from my right honourable friends the Prime Minister and the Home Secretary, it is clear that we must stop the boats. That much, at least, is common ground.

Our approach is driven by a desire to do right by the people of this country and guided by that most British of principles—fairness. The present situation is anything but fair. The case for decisive action could not be clearer. I say again: ours is a generous and compassionate country. We will continue offering sanctuary and refuge to those fleeing persecution, conflict and tyranny, but we will not accept mass illegal migration to our shores. That is why we need this Bill: to stop the boats and address this challenge once and for all.

I turn to the matters raised in the debate, including the points addressed in the amendment moved by the noble Lord, Lord Paddick. First, the most reverend Primate the Archbishop of Canterbury and other noble Lords were right to place the Bill in its moral context. Proceeding with this Bill is the moral course. We must put a stop to the dangerous channel crossings putting lives at risk and splitting families. We must end the callous exploitation of vulnerable people by the people smugglers, uphold the law and ensure fair play for those who abide by our Immigration Rules.

A number of noble Lords commented on the fact that, on the introduction of this Bill in your Lordships’ House, I made a statement under Section 19(1)(b) of the Human Rights Act. I think it is fair to say that there has been a misunderstanding of the effect of such a statement. We have designed a scheme that is novel and ambitious; as a result, we have made a Section 19(1)(b) statement under that Act. This simply makes it clear that we cannot say definitively that we will win a challenge in Strasbourg. However, we are confident that Strasbourg will respect the will of Parliament and our domestic court processes. We make no apologies for taking this approach. This is what the situation demands and what the British public expect.

Section 19(1)(b) statements have been made by Governments of all stripes. One was made by the then Deputy Prime Minister, Nick Clegg, when bringing forward the House of Lords Reform Bill in 2012. Similarly, Tessa Jowell made a Section 19(1)(b) statement in what became the Communications Act 2003. It is noteworthy that, when that Act was later challenged in the European Court of Human Rights, it found in the Animal Defenders case that there was no violation of the convention.

A number of noble Lords, including the noble Lord, Lord Cashman, and the noble Baroness, Lady Ludford, argued that this Bill breaches our international obligations. There were some equally forthright contributions making the contrary and, in my view, very persuasive case from my noble friends Lord Howard of Lympne, Lord Lamont, Lord Wolfson KC and Lord Sandhurst KC, some of them drawing on the work of Professor Ekins KC and others at Policy Exchange, which has written extensively on this topic. The Government take their international obligations, including under the ECHR, very seriously. There is nothing in the Bill, including in Clause 53, that requires the UK to breach its international obligations.

In any event, it is not correct that a failure to comply with interim measures invariably involves a breach of international law. There are exceptional circumstances where non-compliance with an interim measure is not a breach of international law.

The noble Baroness, Lady Lister, the right reverend Prelate the Bishop of Durham, and the noble Lord, Lord Alton, among others, argued that the Bill breaches the refugee convention. I can assure the House that we are satisfied that the provisions in the Bill comply with the refugee convention.

It is a long-standing principle that those in need of protection should claim asylum at the earliest opportunity in the first safe country they reach. This is an established part of international asylum procedures and applied across the EU, such as through the Common European Asylum System. This concept seeks to ensure that migration from safe countries does not undermine concerted efforts to help those most in need. Plainly, all illegal arrivals across the channel come from a safe country, mostly France; as my noble friend Lord Dobbs, and the noble and learned Lord, Lord Brown of Eaton-under-Heywood, rightly pointed out, their lives are not in danger in France, and they are taking the place of those in genuine need.

In December, the High Court upheld the lawfulness of this principle—that those in need of protection should claim asylum in the first safe country they reach —concluding that the Government can relocate asylum seekers to Rwanda, for their claims to be determined by Rwanda rather than by the United Kingdom. We look forward to the Court of Appeal’s judgment on this question in the near future.

This addresses the concerns in this regard expressed by various noble Lords, including the noble Lords, Lord Browne of Ladyton, Lord Howarth of Newport, and the noble Baroness, Lady Jones. We have always made it clear that no one will be returned or removed to a country where they may be persecuted, and this will not change.

The noble Lord, Lord German, argued that, in disapplying Section 3 of the Human Rights Act 1998, the Bill was transferring powers from Parliament and the courts to the Secretary of State. However, the opposite is the case. The Human Rights Act, especially Section 3, has in some cases shifted the balance away from Parliament towards the courts. We are already proposing to repeal Section 3 of the Human Rights Act in the Bill of Rights Bill, so our courts will no longer be required by that Act to rewrite legislation passed by this Parliament. Ahead of wider reforms to our human rights framework, we are implementing this disapplication to the provisions of this Bill to avoid courts adopting an interpretation which is inconsistent with Parliament’s intentions.

A number of noble Lords, including my noble friend Lady Helic, have been labouring under a misapprehension that the Bill removes judicial oversight. I would gently invite those who think this carefully to read the relevant clauses of the Bill. In all cases, individuals will have the opportunity to make suspensive claims with judicial oversight in the Upper Tribunal—these claims are suspensive of removal.

In all cases, individuals can institute other legal challenges, including judicial reviews on human rights grounds, in the normal way. However, these claims are non-suspensive of removal. These claims can continue remotely, as they have done historically for other immigration claims, for example in the case of the refusal of a spousal entry clearance application. Additionally, the Bill provides for continued judicial oversight of detention as it will be open to any detainee at any time to apply to the High Court for a writ of habeas corpus or its equivalent in Scotland.

Many noble Lords, including the noble Lord, Lord Hunt of Kings Heath, questioned whether there is evidence of the misuse of our modern slavery protections. The modern slavery clauses are fundamentally about preventing dangerous and illegal crossings that pose a threat to public order. However, it is clear that the national referral mechanism offers world-leading protections to victims of modern slavery, and we must be alert to the risk that these protections will be used to frustrate removal action. Last year, 17,000 referrals took on average 543 days to reach a conclusive-grounds decision, making modern slavery protections susceptible to misuse.

Modern slavery referrals from detention and prison have also increased. In 2020, 27%—that is, 1,005—of the people detained within the UK following immigration offences were referred as potential victims of modern slavery, and only 1% of individuals detained within the UK following an immigration offence who made a modern slavery claim—I repeat, only 1%—were returned. The NRM referral rate for people arriving in the UK on small boats and being detained for return has risen from 6% of detentions ending in 2019—that is, 50 people —to 73% in 2021. The referral rate has since fallen slightly to 65% between January and September 2022. In contrast, where people were not detained for return, less than 3% of people who arrived in the UK on small boats in 2021 were referred to the NRM within three months of entering the UK. Modern slavery laws are, therefore, an inextricable part of an immigration system that is open to being misused in order to block removals.

My noble friends Lady Mobarik and Lady Stroud, as well as other noble Lords, including the right reverend Prelate the Bishop of Gloucester, expressed concerns about the impact of the Bill on victims of modern slavery. The Government are committed to tackling the heinous crime of modern slavery and supporting victims. The Bill ensures that individuals who arrive in the UK illegally will no longer have the potential to misuse modern slavery protections to thwart their removal from the UK.

The measures are not a blanket approach. If a person needs to stay in the UK to help support an investigation into and the prosecution of their people traffickers, they will be exempt. If someone is identified as a potential victim of modern slavery, the Government will ensure that they are safely returned to their home country where possible, or to another safe third country, such as Rwanda. This will mean that trafficking victims are given modern slavery support and that traffickers can be brought to justice, while preventing people from abusing our modern slavery laws. These provisions are consistent with our international obligations. Indeed, under Article 13 of ECAT, the UK has a right to disqualify individuals who pose a threat to public order. However, we recognise that this is a significant step, and that is why the modern slavery provisions in the Bill are time-limited; unless renewed, they will cease to apply after two years.

A good many noble Lords, including my noble friend Lord Bourne of Aberystwyth, argued that the solution to the small boats problem is to open up more safe and legal routes. I am sorry to say that this is of itself no answer. The UK has a long and proud history of supporting refugees, and we are committed to maintaining clear, well-defined, global safe and legal routes for people in need of protection. The UK, working with the UNHCR, currently operates a number of safe and legal routes which support people directly from regions of conflict and instability. In addition, we operate country-specific schemes for those who are eligible from Afghanistan, Ukraine and Hong Kong. But with worldwide refugee displacement now standing at around 100 million people, as observed during the debate, the United Kingdom cannot help everyone. I think there is agreement on that point around much of the House.

It is important to add that those seeking protection should claim asylum in the first safe country. This is the fastest route to safety. The Prime Minister has committed to introduce a cap on the number of people coming via safe and legal routes, which will be based on the capacity of our local authorities, agreed by Parliament and amendable in the event of humanitarian crises.

The Bill delivers this, and I welcome the support from the Front Bench opposite for the principle of a cap. I too well remember the most reverend Primate proposing such a cap during his debate in December. The cap is necessary if we are to ensure that the number of individuals we welcome through safe and legal routes does not exceed the capacity of the UK to integrate and accommodate them effectively—a point well made by my noble friend Lord Farmer in respect of stretched children’s services. This is the right way to ensure that we can continue to provide sanctuary to those in need of international protection as part of a well-managed and sustainable migration system.

As now provided for in the Bill, the Government will publish a report within six months of Royal Assent on current and any proposed additional safe and legal routes. I repeat: we will implement those new routes by the end of next year.

A number of noble Lords, including the noble Lord, Lord Scriven, and the noble Baroness, Lady Brinton, argued for the exclusion of children from the duty to remove or the detention powers in the Bill. We also heard calls to exclude pregnant women from the detention powers. I am glad to tell the House that, to date, there have been very few pregnant women in the small boats. Let me say to the House that such a move would only serve to incentivise the people smugglers to target particular groups or those with certain characteristics. The result could well be that more children and pregnant women were put into flimsy boats, putting more young lives at risk, splitting up families and encouraging adults to make false claims that they are a child.

I can assure your Lordships’ House that families will be kept together wherever possible and that children will be detained for as short a period as possible in age-appropriate accommodation. Moreover, as we have already made clear, our policy is not to arrange to remove unaccompanied children before they turn 18, save in very limited circumstances, as now set out on the face of the Bill—for example, for the purpose of reunion with a parent or where removal is to a safe country of origin; and they may only be detained in specific circumstances, to be prescribed in regulations.

On the issue of detention more broadly, contrary to what a number of noble Lords opposite have said, the Bill does not provide for indefinite detention. It does enable detention for the purposes of removal, and in doing so codifies in part the long-standing common-law principles governing immigration detention, including that a person may be detained only for a period that is reasonable in all the circumstances. They will not be, as the noble Baroness, Lady Chakrabarti, put it, interned in legal limbo indefinitely.

The noble Baroness, Lady Lister, expressed concerns regarding the provisions strengthening scientific age-assessment methods. It is critical that the Government take action to disincentivise individuals who are deliberately mispresenting their age in order to cheat the system, as well as to protect genuine children. Determining the age of a young person is an inherently difficult task, and we are aware that no single age-assessment method, scientific or not, can determine an individual’s age with precision. However, we believe that considering a wider range of evidence will enable more informed and robust decisions. I can assure the House that regulations under Clause 56 will not be made to introduce an automatic assumption of adulthood until the science is sufficiently accurate to support such a finding. Moreover, the assumption will only be applied in the circumstances set out in regulations if an individual refuses to undergo scientific age-assessment without good reason.

It is important to note that negative consequences such as automatic assumptions are applied, with variations, by ECHR signatories, including the Netherlands, Luxembourg, Poland, Slovakia and the Czech Republic. So it is the UK which is the outlier, as one of very few European countries that does not currently employ scientific methods such as X-rays as part of age assessments.

The noble Lord, Lord Coaker, and others asked about the detention capacity required to give effect to the Bill. The purpose of the Bill is to deter people from coming to the UK illegally, as they know they will be swiftly returned to their home country if it is safe to do so, or to a safe third country. When the Bill is implemented, this will mean that numbers will start to come down, and that will reduce pressure on accommodation and services in the UK.

We are absolutely committed to making this legislation work and to find further solutions to scale up our detention capacity, but the first step is this change in the law, which is why we are focused on getting the Bill through the House.

Various noble Lords challenged the deterrent effect of the Bill. We have always said that there is no one solution to the global migration crisis, and certainly no overnight fix, but doing nothing is not an option. The Bill will remove the incentive to pay criminal gangs and attempt dangerous channel crossings in the hope of settling in the UK. Its provisions are designed to deter such dangerous and illegal activity.

My noble friend Lord Horam reminded us of the instructive Australian experience of what happens when illegal routes are rendered unviable, and as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, correctly warned, every amendment to soften the Bill will weaken its objectives. My noble friend Lady Lawlor put it well: this Bill is stringent but necessary and proportionate, but it is not the only step we are taking. It comes alongside our partnership with Rwanda, bolstered enforcement action to bear down on the criminal gangs and the co-operation with France, as my noble friend Lord Howard of Lympne rightly pointed out.

This Government will always act in the interests of the law-abiding majority. That means securing our borders, delivering a fair and effective immigration and asylum system, and stopping the boats. Enough is enough. The British people want this problem dealt with. The Bill will enable us to do exactly that, and I commend it to the House and invite noble Lords to reject the amendment standing in the name of the noble Lord, Lord Paddick.

22:06

[Lord Paddick (LD)]

My Lords, our reasoned amendment sets out why this House should decline to give the Bill a Second Reading. Contrary to the assertions made by the Minister, we believe that the Bill

“undermines the rule of law by failing to meet the United Kingdom’s international law commitments and by allowing Ministers to ignore the directions of judges; … undermines the UK’s tradition of providing sanctuary to refugees by removing the ability of refugees to exercise their legal right to claim asylum, by removing protections afforded to modern slavery victims and by increasing the number of people in indefinite detention, including children; … fails to provide safe and legal routes for refugees; … fails to include measures to eliminate the backlog of asylum cases; and … fails to include measures to tackle people smuggling gangs”.

I am grateful to my noble friend Lady Thomas of Winchester for pointing out that when, in 2007, the former Labour Government passed the Fraud (Trials Without a Jury) Bill in the other place by a similar majority to this Bill, the House of Lords carried a fatal Motion at Second Reading. The Bill was never reintroduced. The list of those noble Lords who voted against its Second Reading is illuminating, and included two Bishops. The noble Lord, Lord Forsyth of Drumlean, who earlier today described overturning the will of the other place as a

“complete abuse of this House”

and said,

“I do not think that any Member of this House who respects its values and its role could possibly go through the Lobbies and vote for that amendment”,


must have had a road to Damascus experience.

[Lord Forsyth of Drumlean (Con)]

I am sure the noble Lord would not want to mislead the House; he has obviously looked into that matter. That Motion was that consideration of Second Reading should be deferred by six months, not that the Bill should be destroyed.

[Lord Paddick]

The noble Lord will know exactly what Erskine May says about the Motion that was passed, which is that Parliament considers that to be a fatal Motion against the Bill. A hundred and 23 other Conservatives also voted to refuse the Bill its Second Reading, including 59 who are still sitting Members of this House. Perhaps they have also changed their minds and perhaps, when they find themselves in opposition, they will change their minds again.

If I thought that this Bill would stop the boats, I would not seek to divide this House, but it is not likely to do so. This Bill is all pain and no gain. This is a question of principle. I wish to test the opinion of the House.

22:10

Division 1

Amendment disagreed.

Ayes: 76

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Liberal Democrat: 65
Labour: 8
Green Party: 2
Crossbench: 1

Noes: 179

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Conservative: 166
Crossbench: 8
Independent: 3
Labour: 1
Ulster Unionist Party: 1

22:20

Bill read a second time.

Commitment and Order of Consideration Motion

Moved by

[Lord Murray of Blidworth]

That the Bill be committed to a Committee of the Whole House, and that it be an instruction to the Committee of the Whole House that they consider the Bill in the following order:

Clauses 1 to 5, Schedule 1, Clauses 6 to 14, Schedule 2, Clauses 15 to 67, Title.

Motion agreed.

House adjourned at 10.21 pm.