House of Lords

Wednesday 7th June 2023 Lords Chamber

Wednesday 7 June 2023

15:00

Prayers—read by the Lord Bishop of Coventry.

SMEs: Net-zero Targets

Wednesday 7th June 2023 Lords Chamber

Question

15:07

Asked by

[Baroness Blake of Leeds]

To ask His Majesty’s Government what steps they are taking to support small and medium-sized enterprises in working towards net-zero targets.

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

My Lords, the Government have launched a campaign aimed at increasing the energy efficiency of businesses, charities and public sector bodies. We continue to support UK businesses to meet their net-zero commitments via the UK business climate hub. SMEs are encouraged to join the UN’s Race to Zero initiative; more than 4,200 UK small businesses have done so. We are also developing a dedicated energy advice service for SMEs, which is due by the end of the year.

[Baroness Blake of Leeds (Lab)]

I am sure that we all value the important contribution that SMEs make to our economy. One of the issues consistently facing them is their ability to employ and retain skilled workers in a highly competitive jobs market. This is especially prevalent where skills are lacking, such as in retrofitting buildings and in new green technologies. The scale of the challenge of achieving net-zero targets presents SMEs working in these areas with a great opportunity. However, barriers such as shortages of skills and available finance are preventing them making the progress that they seek to achieve. What steps are the Government taking to promote green jobs, skills training and competitive supply chains, particularly by working with industry, the education sector and the finance sector to create pathways into these jobs?

[Lord Callanan (Con)]

The noble Baroness makes an important point. The encouragement of green jobs and helping workers to go from the old fossil fuel economy to new jobs is a challenge. We are spending several billion pounds a year working with the DfE and across the various green homes grants. We have a number of highly skilled green jobs funds, which industry accessed. There is no one simple answer but she is right; it is a job that we are working on.

[Lord Teverson (LD)]

My Lords, earlier today, I spoke to an owner-manager of an SME in the print industry in my part of the world. She said that her biggest issue in trying to become a B Corp SME is getting information from big suppliers on their scope 3 emissions, which is really important for SMEs that want to go down this path. Could the Minister take this issue and how it might be solved back to his department, or give me an idea of how that issue might be approached by the Government in future?

[Lord Callanan (Con)]

The noble Lord makes an important point. We are aware of this issue. We are increasing the reporting requirements for bigger companies. We must be careful to make sure that we do not put too many undue burdens on business but I will certainly have a look at the issue for the noble Lord.

[Lord St John of Bletso (CB)]

My Lords, does the Minister agree that there is no clear consensus as to what net zero entails for SMEs? With them accounting for 99% of all businesses in the United Kingdom, what are the Government doing to standardise pathways to net zero among these businesses?

[Lord Callanan (Con)]

Of course it will vary depending on the type of business. Many businesses are already working in green areas. A lot of them are involved in retrofitting. On the other hand, some of them are very energy intensive. There are different solutions for different businesses.

[Lord Forsyth of Drumlean (Con)]

My Lords, given that their competitors in Germany and elsewhere are extending the deadline for ending the production of motor cars with internal combustion engines, are we not in danger of making our large car manufacturers into small and medium-sized enterprises as they are being forced to reduce production, with great consequences for employment and competitiveness?

[Lord Callanan (Con)]

I normally agree with my noble friend, but I do not on this solitary occasion: I think he is wrong. Other major economies, including the EU, are essentially doing a similar job—they have made a couple of small exceptions to the ban with things such as novel fuels. Providing certainty for industry and business is the direction they need to go in. Supporting them in the appropriate areas, ensuring that the right gigafactories are completed in the UK, is the way to go, in my view.

[Baroness Blackstone (Lab)]

My Lords, one way to help small and medium-sized businesses is to remove barriers to trade. Given that the UK and the EU both have carbon pricing, would it be possible for the UK and the EU to agree to waive the requirements for exporters and importers to calculate and report on carbon emissions from products traded between the EU and the UK?

[Lord Callanan (Con)]

The noble Baroness makes an important point. We want to make trade as simple and easy as possible. I will certainly take the point back to the trade department.

[Baroness Hayman (CB)]

My Lords, I declare my interests as set out in the register. The Minister talked about the importance of providing certainty for business and small and medium-sized enterprises. One of the barriers to those enterprises investing in skills training is uncertainty about programmes such as retrofitting and energy efficiency, which have been marred by stop- go policies in the past. Will the Minister look again at the Government’s opposition to the energy efficiency proposals in the Energy Bill?

[Lord Callanan (Con)]

I am afraid that I do not agree with the noble Baroness. We have an extensive energy efficiency programme. We are spending £6.6 billion over this Parliament. I agree that long-term consistency and certainty are important, which is why the Treasury has guaranteed an additional £6 billion from 2025 for precisely these measures.

[Lord Dobbs (Con)]

My Lords, the Government have a very ambitious net-zero target and part of that is their ambitious target for the installation of heat pumps, which, frankly, at the moment they look like they are not going to meet. The Minister’s own department’s figures suggest that the great majority of heat pumps so far installed in this country are produced abroad. Is there not a way in pursuit of this ambitious target to ensure that a much greater number of heat pumps installed in this country are produced in this country by British manufacturers rather than sending the business abroad?

[Lord Callanan (Con)]

I agree very much with my noble friend, and we are working with a number of manufacturers looking to relocate production to the UK. I think his figures in terms of the percentage produced in the UK are slightly wrong. Mitsubishi in Scotland produces a large number of heat pumps and there are a number of ground source heat pump manufacturers as well. We want more relocated into the UK. We are looking at a market mechanism with the boiler manufacturers, and have a grant programme to relocate production facilities into the UK.

[Lord Bellingham (Con)]

My Lords, as the noble Lord, Lord St John, pointed out, 99% of businesses in this country are SMEs and many will not be able to reach carbon neutrality. What are the Government going to do to try to help them with carbon offsetting?

[Lord Callanan (Con)]

My noble friend makes a good point. Of course, carbon offsetting is a controversial area. We must ensure that any offsetting that takes place is genuine, viable and reduces real-world carbon production.

[Lord Trees (CB)]

My Lords, because the net-zero metric does not include all the emissions associated with imported products, does the Minister agree that we must bear in mind our total carbon footprint on any activity in the UK which uses imports, so that we are not unnecessarily exporting our emissions? That would be of no help whatsoever in combating global warming.

[Lord Callanan (Con)]

I agree. Carbon leakage is an important problem, and one of the reasons why a number of the larger industries are subject to international competition, as the noble Lord mentioned. We give them free permit allocations under the emissions trading system.

[Lord Watts (Lab)]

My Lords, are the Government looking at the efficiency of heat pumps? Have they monitored them, and will they produce a report on their cost and effectiveness?

[Lord Callanan (Con)]

Indeed, we have already done so. There have been a number of reports on the efficiency of heat pumps. Efficiency varies depending on the quality of the installation. We must ensure that they are installed properly in the appropriate properties with the right number of emitters. I am happy to send copies of the reports that we have done to the noble Lord.

[Lord Wallace of Saltaire (LD)]

My Lords, a number of SMEs operate in old buildings. When retrofitting to improve insulation considerably, we rapidly come up against planning restrictions. Are the Government doing their best to reconcile the preservation of the built environment with the need for much more efficient insulation of old housing?

[Lord Callanan (Con)]

“Yes” is the short answer to the noble Lord’s question. I am on a working party with DLUHC looking at some of the planning barriers that exist. The conclusion is that there are not many legislative barriers; it is just the views taken by different planning officers in different local authorities. Like the noble Lord, we value local authority autonomy to decide these things for themselves, but there is perhaps more of a role for government guidance in these matters.

Water: Wales and England

Wednesday 7th June 2023 Lords Chamber

Question

15:17

Asked by

[Lord Wigley]

To ask His Majesty’s Government what discussions, if any, they have had with Welsh Government Ministers concerning proposals to secure greater quantities of water for use in south-east England from sources in Wales and from rivers running from Wales to England.

[The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)]

Under the intergovernmental protocol, Defra and the Welsh Government collaborate on water resources management. Water companies have a statutory duty to provide clean and reliable water to customers. They have been consulting on their new water resources management plans, including the water infrastructure needed to meet their water-supply duties. The plans will be referred to the Secretary of State and Welsh Ministers for decisions on whether the plans can be finalised later this year.

[Lord Wigley (PC)]

My Lords, as this is the first Wales-specific opportunity in the House since the sad death of Lord Morris of Aberavon, I pay tribute on behalf of Plaid Cymru to his lifelong work for Wales. We extend our sympathy to his family.

We in Wales fully recognise the needs of south-east England for adequate supplies of drinking water, and that it may need additional capacity from Welsh reservoirs and agreed flows of waters down rivers emanating from Wales. However, will the Minister accept that it is not unreasonable for Wales to receive fair financial benefit for such water supplies and that development control over any such projects in Wales should be in the hands of Senedd Cymru and the relevant local authority?

[Lord Benyon (Con)]

I think that we all concur with the noble Lord on his condolences for Lord Morris.

There is a long-established protocol for transferring water from water-rich parts of the United Kingdom to areas where it is needed. Wales has been providing water to Liverpool and other cities in the north-west, and there are plans that water can now reach the Thames through a new arrangement. On charging, there are a number of existing transfers where water companies receive money from water companies in England for water that they have received from Wales, and that will continue. Additionally, there are investments in the Welsh catchments which protect water quality, support biodiversity and sequester carbon, and that finance does flow into those schemes.

[Lord Robathan (Con)]

As somebody of Welsh ancestry, who could have played rugby for Wales—although it is unlikely I would ever have caught the selector’s eye— I welcome how the water that falls on the beloved islands of the United Kingdom is used for the benefit of everybody in the United Kingdom. We thank the Welsh for storing water in Wales, but I understand that people on the Welsh side of the border use hospital services in Shropshire and elsewhere. Surely we should be grateful that we are a United Kingdom and that all members of the United Kingdom can use water and hospital services to their benefit.

[Lord Benyon (Con)]

I agree with my noble friend. There are a number of different actions in the Wales Act which will see more control over these issues in the Senedd when Section 48 is put into place—that is under negotiation now. On a small island such as this, there is a free-flowing use of services by businesses and individuals, and that will always continue.

[Baroness Boycott (CB)]

My Lords, it is very sad that there is not more messaging around how precious and finite a commodity water is. When the British public were asked how much they use, they guessed between 20 and 40 litres a day; in actual fact, it is 145 litres a day. The Environment Act set a target of a 20% reduction within the next 10 years, but last year our use went up by 3.7%. What are the Government going to do in terms of public messaging to encourage people to use less of this precious stuff, whether we get it from Wales or from the water-stressed east?

[Lord Benyon (Con)]

The noble Baroness raises a crucial point. Household consumption amounts, on average, to 60% of public water supply and has decreased 5.2% since last year from 152 to 144 litres per person per day. This remains above the forecast of 136, but our environment improvement plan gives very strict targets for further reduction. Some of that is about communication, but it is also about demand-led measures, which can cause the dramatic reductions that we want to promote.

[Baroness Jones of Whitchurch (Lab)]

My Lords, in 2020 the Government reported that 3 billion litres—a huge 20% of the UK’s total supply—are lost every day through leakage from the pipes. Last month, Ofwat expressed concerns that some water companies do not have plans to meet the minimum requirement of a 50% reduction over the period 2017-18 to 2050. Can the Minister explain what urgent action is being taken to make sure that the water companies address this really serious concern?

[Lord Benyon (Con)]

Through our direction to Ofwat, the Government have made this an absolute priority. The latest figures show that three-quarters of companies are meeting their leakage targets and some have reduced leakage by more than 10% in the past two years. We will continue to crack down on the amount of water lost through leaks with targets; we expect leakage to reduce by 16% by 2025.

[Lord Hamilton of Epsom (Con)]

The noble Baroness, Lady Boycott, is obviously right when she says that water supplies are limited and finite. On the other hand, if the water companies stopped all their leaks and if we built more reservoirs when there is surplus water, we would not have a problem.

[Lord Benyon (Con)]

There are plans for more reservoirs. A reservoir in East Anglia has increased in size and, I hope, we will very soon see plans being brought forward by Thames Water for a major reservoir that will resolve many of these issues. The reservoirs in London were closed because a ring main was created, which is sometimes quoted erroneously in this case.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, water is an essential resource, but we have seen it being polluted on a grand scale through legal sewage overflows. This week, we have also seen that the water network of Ukraine is vulnerable to catastrophic attack, causing great personal distress and huge environmental damage. The noble Lord, Lord Wigley, has highlighted the need to move water around the country, from areas of plenty to those suffering scarcity. Is the Minister confident that, nationwide, we have sufficient water resources to meet the current population’s demands?

[Lord Benyon (Con)]

If you draw a rough line from the Bristol Channel to the Wash, all that is north and west of it has a surfeit of water, but there are areas that are south and east of it where rainfall is often below that of some countries in sub-Saharan Africa. That is why our environment improvement plan sets a clear reduction of demand, halving leakage rates, developing new supplies, moving water to where it is needed and reducing the need for drought measures that can harm the environment.

[Baroness Anderson of Stoke-on-Trent (Lab)]

My Lords, we all appreciate the urgency of ensuring sustainable water supplies for the entire country. However, 60 years on from the flooding of Capel Celyn, the sensitivities of the reallocation of Welsh water resources to English cities needs to be understood. As not a single reservoir has been built since privatisation in 1989, will the Minister update the House on what recent meetings Ministers have held with Thames Water, the National Infrastructure Commission and the relevant local authorities to discuss the proposed Abingdon reservoir and associated schemes?

[Lord Benyon (Con)]

The Abingdon reservoir was brought to Ministers over a decade ago, and the case made by Thames Water was not correctly put forward. We told them to go back and do it again. They have, and this will now be part of their water resources management plan, which will go to Ministers this year. I hope that we can learn from this. It should not take two to three decades for really important infra- structure to be built.

[Lord Cormack (Con)]

My Lords, my noble friend knows of my affection for the Wye, that glorious river. Can he give any encouragement on the cleaning up and reduction of pollution in that river since his last answer?

[Lord Benyon (Con)]

Agricultural pollution, primarily through slurry spreading and the use of inorganic fertilisers, was responsible for roughly 70% of the phosphate pollution in that extraordinarily beautiful river. My Secretary of State has made this a personal mission: she hosted a round table in Hereford, bringing together all the stakeholders, where the main focus was to find the best ways to restore this river to a favourable condition. She identified a key point: one local authority, which was then run by the Greens and independents, had not even looked at, let alone refused, the application for a phosphate-stripping plant, which was put in by a company that was using chicken manure to produce energy. We really need to make sure that we are joining things up so that local authorities, the Government, the regulators, water companies and farmers are all working together to save this river.

[Lord Griffiths of Burry Port (Lab)]

My Lords, I am grateful for the answers. I note the way that a question about a Welsh resource rapidly turned into an exchange of views about water in general. In asking my question, I pay fulsome tribute to my noble friend Lord Wigley in persistently asking for a listening ear for real Welsh concerns. It is not a question of generosity; Wales is happy to be generous. At the heart of my noble friend’s Question was a co-ordinated and focused policy with proper consultations and with a key role for the Senedd especially. I would like some reassurance that, of all the questions asked, that one was noted by the Minister.

[Lord Benyon (Con)]

The noble Lords, Lord Griffiths and Lord Wigley, are totally sincere in the points that they make. We are very keen that there should be an understanding of the need for fairness in all such discussions, whether we are talking about cross-border issues relating to water, the health service or the needs of a catchment such as the Wye, which we were just discussing. We treat these negotiations with the Welsh Government, Welsh organisations and local authorities very seriously and, I hope, with respect.

Housebuilding

Wednesday 7th June 2023 Lords Chamber

Question

15:28

Asked by

[Lord Young of Cookham]

To ask His Majesty’s Government when they expect that they will reach their target of building 300,000 new homes a year.

[The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Scott of Bybrook) (Con)]

My Lords, we are continuing to work towards our ambition of delivering 300,000 homes a year. This has always been a stretching ambition, and we have made strong progress: the three highest rates of annual supply in over 30 years have all come since 2018. We are aware that increasing supply even further will be made more difficult due to the economic challenges we face, but we are engaging with Homes England, developers and registered providers to understand the delivery challenges they face.

[Lord Young of Cookham (Con)]

Has my noble friend seen today’s Times, which reports that new housebuilding is at its lowest level for 14 years, outside the Covid years? Has a much-needed recovery not been delayed by the concession on planning made in another place to a number of government Back-Benchers, which has already resulted in over 50 local authorities withdrawing their local plans with a view to submitting new plans with a lower number? If a Government make a manifesto commitment to build 300,000 homes, can they rely simply on the good will of local authorities to deliver it, or should we amend the levelling-up Bill to ensure that the country gets the homes it needs?

[Baroness Scott of Bybrook (Con)]

My Lords, I will start at the end. The proposed changes to the planning system set out in the Levelling-up and Regeneration Bill are designed to support more areas to get an up-to-date local plan in place, and therefore deliver more housing. The Government do not recognise the figure on withdrawn plans. Pauses and delays to plan-making are not something new, which is why we are determined, through our reforms, to reinvigorate local plan-making by simplifying it, speeding it up and strengthening the weight of democratically produced plans in this country. As for the article in the Times, yes, I have seen it and all I can say is that we still want to build more homes of the right type in the right places. We know that increasing housing supply will be made more difficult because of economic challenges, but we are working with the market very closely on the impacts, and to see what more the Government can do to provide support.

[The Lord Speaker (Lord McFall of Alcluith)]

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

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

My Lords, could not a land commission be established to research what the impact would be of building on land acquired at agricultural prices, as proposed by Lisa Nandy, and sold for housing of a new form of ownership title, as I proposed in previous debates in the House? Only by that means can we guarantee the target of the noble Lord, Lord Young of Cookham, thereby providing affordable housing to a new generation of young people who, without inherited wealth, may never be home owners.

[Baroness Scott of Bybrook (Con)]

The Government need to look at all opportunities for housebuilding but we have to look at brownfield land first, before agricultural land.

[Lord Bird (CB)]

Are the Government looking at the possibility of expanding home ownership to groups of people who do not have that chance at the moment, thereby creating greater sociability out of poverty, because home ownership is one of the best ways of ending poverty?

[Baroness Scott of Bybrook (Con)]

I absolutely agree with the noble Lord, and this Government are committed to supporting home ownership and first-time buyers. Since spring 2010, more than 837,000 households have been helped to buy their own home through the government-backed schemes, including Help to Buy and Right to Buy. We have looked at stamp duty and made that much more positive for first-time buyers, and I believe we are spreading the opportunity to more people through our First Homes Scheme, giving a minimum of 30% discount to people who cannot otherwise afford to buy in their areas. That is what we are doing to support home ownership.

[Lord Mackenzie of Framwellgate (Non-Afl)]

My Lords—

[Lord Porter of Spalding (Con)]

My Lords, I draw attention to my interests in the register. May I point out to my noble friend that Governments do not build houses—the private sector builds them? The private sector will build only when it thinks there is a market for them. The Bank of England’s crashing of interest rates in its failed policy to drive down inflation is not going to be the solution. My noble friend must remember that the only time this country has ever delivered 300,000 units a year was when councils were freed up to deliver 70,000 or 80,000 units. Her department has removed two of the historic barriers, but will she look at removing the third? We removed the cap on right-to-buy receipts being spent—councils can now spend 100%, which is brilliant—and the cap on councils borrowing against the existing value, but we still need to remove the cap on their ability to set locally determined discounts.

[Baroness Scott of Bybrook (Con)]

My noble friend is right: it takes a whole government, and many departments of government, to ensure that we have housing supply. DLUHC and the Housing Minister cannot do it on their own, so we need to work across government. As far as local authorities are concerned, my noble friend is right that we are removing the barriers and local authorities are now building houses.

[Baroness Thornhill (LD)]

My Lords—

[Baroness Warwick of Undercliffe (Lab)]

My Lords—

[Baroness Williams of Trafford (Con)]

It is in fact the turn of the Labour Benches.

[Baroness Warwick of Undercliffe (Lab)]

My Lords, following on from the noble Lord, Lord Campbell-Savours, the recent proposal by the Labour Party to remove hope value would allow social landlords more easily to develop the affordable homes our country so badly needs. Fewer than 7,000 were built last year but we need 90,000 every year, so it is not surprising that these proposed reforms are supported by a wide range of organisations, including the National Housing Federation and Shelter. What assessment have the Government made of the impact of high land values on our ability to deliver new social housing?

[Baroness Scott of Bybrook (Con)]

The noble Baroness has been involved in some of the Committee sessions of the levelling-up Bill, and she will know that we are looking at hope value and land prices. The Government particularly recognise the need for homes for social rent. That is why social rent homes were brought into the scope of the affordable homes programme, for example, in 2018. As I say, the levelling-up White Paper committed to looking at ways to increase the supply of social rented homes.

[Baroness Thornhill (LD)]

My Lords, 40 years ago SME builders built 40% of all new homes. Today the figure is around 10%. The Minister might therefore understand my disappointment that the Government have not accepted my amendment to the levelling-up Bill that would assist SMEs to build on small sites. Will she offer assurances today that the new NPPF, which is being revised and will appear soon, I hope, will have something in it to give SMEs hope that they can get back to building at scale?

[Baroness Scott of Bybrook (Con)]

I am not going to get into what will and will not be in the NPPF at this time. What I can say about government support for SMEs is what we are doing at the moment. We have launched the Levelling Up Home Building Fund, which is providing £1.5 billion in development finance to SMEs and MMC builders and supporting them to deliver more homes. As the noble Baroness said, the Levelling-up and Regeneration Bill will make changes to the planning system that will support SMEs by making the planning process faster and far more predictable.

[Lord Naseby (Con)]

My Lords—

[Lord Birt (CB)]

My Lords—

[Lord Haselhurst (Con)]

My Lords—

[Baroness Williams of Trafford (Con)]

My Lords, it is the turn of the Cross Benches.

[Lord Haselhurst (Con)]

My Lords—

[Noble Lords]

Order!

[Baroness Williams of Trafford (Con)]

It is the turn of the Cross Benches.

[Lord Birt (CB)]

My Lords, we have long had a housing crisis. Hundreds of thousands are homeless, millions are living in substandard and overcrowded accommodation, there are 2 million fewer social housing units than some decades ago and home ownership among the young has fallen dramatically. Does the Minister agree that we need to create many more than 300,000 new dwellings per year if we are to achieve a reasonable equilibrium in reasonable time in the UK’s housing market?

[Baroness Scott of Bybrook (Con)]

The Government’s view is that we need to deliver 300,000 houses per year by the middle of 2025. The noble Lord is right that we then need to look again at those numbers. The key to this is that local authorities look at the housing need in their areas and build to that housing need.

Electronic Passport Control Systems

Wednesday 7th June 2023 Lords Chamber

Question

15:39

Asked by

[Lord Berkeley]

To ask His Majesty’s Government what action they are taking to improve the reliability of their electronic passport control systems.

[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

The UK border has a highly resilient e-gate infrastructure, with over 50% of all arrivals successfully using automation in the year ending March 2023. On Friday 26 May we had a nationwide border system issue, the unintended consequence of a change, which meant that we had to take our e-gates offline. We are undertaking a full review of the incident and are fully committed to ensuring that resilience is at the heart of our transformation of the border.

[Lord Berkeley (Lab)]

I am grateful to the Minister for that explanation. When you are standing for many hours at an e-gate, resilient is not the adjective I would use, but at least the Home Office issued a press release the next day, saying that it had put in place “robust plans” to deploy officers. That is useful. Is it not time that we had a contingency plan for e-gates, three years after the Government vowed to take back control of our Brexit borders, rather than relying on the odd person to check your passport manually? Is it not more important to do that than to see the Prime Minister flying off to Dover, putting on a life jacket, standing in a dinghy and pretending he is King Canute to keep a few illegal immigrants out?

[Lord Murray of Blidworth (Con)]

As the noble Lord well knows, 95.9% of recorded wait times in the first three months of 2023 were within published service standard. The UK border system has, as I have already said, a highly resilient e-gate infrastructure, with circa 65 million passengers being processed in the year to May 2023. There are currently 288 e-gates operational, comprising 22 at air and rail terminals, including in Paris, at Gare du Nord, and Brussels, at Gare du Midi. From April 2011 to June 2021, e-gates processed 258 million passengers through the UK border. As the noble Lord will see, it is a highly effective addition to our UK border infrastructure.

[Lord Pannick (CB)]

My Lords, the Minister said there was an issue. Will he give the House a hint as to what this issue was and who was responsible for it?

[Lord Murray of Blidworth (Con)]

The noble Lord asks a fair question. However, as he probably knows, it has never been government practice, for reasons of law enforcement, to comment on operational issues relating to border security and immigration controls. This includes offering commentary on the performance of border systems and e-passport gates specifically. The e-gates process passengers arriving in the UK, and provide a secure border check on approved travel documents, and refer passengers to an officer if required. The current e-gate estate was upgraded in 2021. Incidents impacting the availability of e-gates are proactively managed, and lessons are learned. They have certainly been learned from this most recent incident.

[Lord Deben (Con)]

My Lords, does my noble friend accept that more people would accept waiting rather better if everyone was polite? I have to say that border officials are very polite, but why is it that no notices say “please”? Could we please have notices that are polite instead of peremptory?

[Lord Murray of Blidworth (Con)]

My noble friend makes a valid point, and I will certainly take that back to the department.

[Baroness Randerson (LD)]

My Lords, this was a short-lived issue but there is a long-term issue for our airports, ports and Eurostar around longer times trying to get through passport control since Brexit. This week saw the final Eurostar Disneyland Paris train from London. The service is no longer viable because of longer check-in times, and Ebbsfleet and Ashford International have in effect been mothballed as Eurostar stopping points. Does the Minister agree that, instead of a declining network, the Government should be encouraging Eurostar to increase its network, because that is the most environmentally friendly way of travelling to and from Europe? What are the Government doing to renegotiate passport control arrangements to make travel easier in the future?

[Lord Murray of Blidworth (Con)]

International rail infrastructure is a very valuable part of our international travel systems. I am afraid it is beyond the ken of the Home Office to require Eurostar to run any particular route, but Border Force does facilitate the clearance of passports, as I have already said, in Brussels and Paris, and this works very effectively. As a result of the agreement with our French friends, they run checks in London, and those are sometimes the subject of delays. That can impact the running of trains; I entirely accept that.

[Lord Blunkett (Lab)]

My Lords, I appreciate that the Minister probably does not want to use the word “cyberattack”, but I have a specific question. Will he go back and ask the department if it can open discussions with those producing and designing the technology to make it possible for those with little or no sight to use e-gates? At the moment, the design is so bad and the equipment so inadequate that it is not possible to use them.

[Lord Murray of Blidworth (Con)]

The noble Lord raises a very important point. I will certainly look into that.

[Baroness Foster of Oxton (Con)]

My Lords, unfortunately we are going to experience, by all accounts, a summer of discontent which will come from the security staff at airports; notwithstanding that the airlines and airports—the entire industry—suffered terrible hardships throughout Covid, this is pretty bad news. It is therefore not acceptable that we then have a repetition of these technical failures at e-gates. It obviously concerns inbound passengers and some who are on transfer but, in large airports, the backlog causes damage to our reputation among tourists and people travelling into the UK. Will my noble friend please speak to the Home Office and give us some assurance that we can minimise any of these failures in the future?

[Lord Murray of Blidworth (Con)]

I thank my noble friend for that question. The Home Office is not responsible for security facilities at the airports beyond those provided by Border Force. I reassure her that Border Force takes seriously maintaining the operation of the e-gates during peak periods. As I have said, we have certainly learned lessons from what happened last week.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble Lord said that 95.9% of travellers go through the e-gate system within the published wait times. What is the position during half terms, when people are travelling with children and there are many more people travelling? Are extra staff put on during half terms?

[Lord Murray of Blidworth (Con)]

I do not have those statistics to hand—I will of course find them and write to the noble Lord in respect of them—but, as your Lordships will recall, there was an SI approved by this House to lower the age at which children could use e-gates from 12 to 10. I am pleased to report that the pilot was incredibly effective and that it will now be rolled out across the e-gates by the end of July, so 10 year-olds across the country will be able to use them. This will increase the flow through airports, particularly during peak periods of half term and holidays.

[Lord Cormack (Con)]

Will my noble friend point out to the noble Lord, Lord Berkeley, that he was maligning King Canute? King Canute sat at the water’s edge to prove that he could not rebuke the waves, not that he could.

[Lord Murray of Blidworth (Con)]

I expect my noble friend does not really expect an answer to that.

[Baroness Wheatcroft (CB)]

My Lords, can the Minister tell the House how he intends to control British borders in the case of people coming from Northern Ireland via the Republic?

[Lord Murray of Blidworth (Con)]

As a consequence of our long-standing treaty agreements with the Republic of Ireland, the common travel area means that one can travel seamlessly from the Republic into Northern Ireland and from all the other parts of the common travel area, the Channel Islands and the Isle of Man. It is obviously part of that agreement that the external parts of the common travel area operate border security of their own. That seems to have worked very effectively for the last century.

[Viscount Stansgate (Lab)]

My Lords, my interest in this is that I was at Heathrow at the time in question. My flight was cancelled and I found myself in the unusual position of entering the UK barely two hours after I had left it. When I re-entered, it was just before the incident that we are discussing and I could not get through the e-gates, so I had to queue up. I can tell the House that, as I am sure the Minister is aware, even on occasions when the system is allegedly working there are many e-gates not in use. As part of the review that the Minister says is being undertaken into this important incident—by the way, the place was full of schoolchildren on their half-term holiday—he might want to take into account the fact that even on a normal “good” day, many e-gates are not in operation.

[Lord Murray of Blidworth (Con)]

The noble Viscount identifies a good point and is as perspicacious as ever. We are certainly looking into having more of the e-gates operational more of the time. The plan in due course, as I have already informed the House, is to dispense with the need to place the passport on the e-gate and that it will recognise people’s faces as they approach it. That should accelerate the speed with which they can go through the e-gate. I hope that might address in due course the problem raised by the noble Lord, Lord Blunkett, as well.

British Nationality (Regularisation of Past Practice) Bill

1st reading
Wednesday 7th June 2023 Lords Chamber

First Reading

15:50

The Bill was brought from the Commons, read a first time and ordered to be printed.

Animal By-Products, Pet Passport and Animal Health (Fees) (England) (Amendment) Regulations 2023

Wednesday 7th June 2023 Lords Chamber

Packaging Waste (Data Reporting) (England) (Amendment) Regulations 2023

Motions to Approve

15:51

Moved by

[Lord Benyon]

That the draft Regulations laid before the House on 18 and 20 April be approved.

Relevant document: 38th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 5 June.

Motions agreed.

Illegal Migration Bill

Committee stage
Wednesday 7th June 2023 Lords Chamber

Committee (3rd Day)

Relevant documents: 34th Report from the Delegated Powers Committee and 16th Report from the Constitution Committee

15:51

Clause 5: Removal for the purposes of section 2 or 3

Debate on whether Clause 5 should stand part of the Bill.

[Lord Purvis of Tweed (LD)]

My Lords, I propose that Clause 5, Schedule 1 and Clause 6 should not stand part of the Bill. I appreciate the support of the noble Baroness, Lady Chakrabarti, on this. Clause 5 relates to the removal of a person, as the Minister said on Monday, “swiftly” after they arrive in the UK or, as he put it, “shortly” after their 18th birthday. But Clause 5 actually says

“as soon as is reasonably practicable”.

Without the regulatory impact assessment, we in Parliament cannot judge what is a “reasonably practicable” period. What we do know—the Ministers know this all too well because they are lawyers—is that case law determines that

“as soon as is reasonably practicable”

cannot be considered as “as soon as possible” or “as soon as feasible”, although the Minister wanted us to think that it does. I guess the Bill would be a deterrent if one assumed that no lawyers for anyone would read it. Of course, there is no baseline estimate of the amount of accommodation and staffing or other logistical requirements that will be needed. We need central government estimates on costs, as we debated on Monday.

As we start today it is worth reflecting on the Minister’s comments in Committee on Monday as to who is included as a person—or “P”. As we found, “P” includes a young woman trafficked to the UK—potentially via multiple trafficking handlers, blackmailed and threatened, most commonly with threats of rape or family retribution—for criminal sexual or labour exploitation.

Home Office data shows the number of irregular arrivals of women since 2018 who received a positive referral to the national referral mechanism was 520. Those 520 women had been criminally exploited, and now they would be imprisoned and deported to a strange third country and, as the Minister confirmed to me on Monday, with no statutory duty for resettlement, readmission or support. Of those women, 73 were 17 and under. Last year, 13 girls came from countries to which we cannot return them. So those sexually exploited girls are now due to be detained and possibly sent to Rwanda. Last year, 13 girls were trafficked for exploitation in the UK, and the Government would now no longer allow their referral for protection. Well, not in my name—and nor should be in the name of any Member of this Parliament.

The Minister told us on Monday that they were part of the gaming of the system. He repeated to me on Monday the false assertion that

“the numbers of people claiming to have been modern slaves in this scenario indicates that there is extensive abuse”.

He also said that

“the simple reality, I am afraid, is that our modern slavery protections are being abused”.

These are misleading talking points from the Minister, and from Suella Braverman, which led, in December, to a formal complaint from Ed Humpherson, the director-general for regulation in the Office for Statistics Regulation, the formal watchdog. In response to those assertions, he investigated the data and wrote to the Home Office on 8 December. In his letter, he said:

“However, policy officials in the department could not point to any specific evidence for this when we enquired. What is more, the proportion of referrals deemed by the Home Office to be genuine cases of modern slavery in its ‘conclusive grounds decisions’ has risen year by year from 58 per cent in 2016 to 91 per cent in 2021, which does not suggest in itself that gaming is a growing problem”.


He continued:

“I would be grateful if you could raise this matter with communications and policy colleagues, encouraging them to ensure that claims in public statements are clear on whether they are sourced from published statistics or from other reliable evidence. This will avoid the risk of misleading people to believe that the statistics say something that they do not”.


So the Minister came to us in Committee in the British Parliament and misled us to believe that the statistics say something that they do not.

What makes that worse is that, in January, Home Office officials accepted the rebuke. Professor Jennifer Rubin, the Home Office Chief Scientific Adviser, replied to the regulator:

“I am glad that you highlighted this issue … The Deputy Director responsible for the publication of the NRM statistics has recently written to the policy and communications Deputy Directors to encourage them to ensure claims made in public statements are sourced from published statistics or other reliable evidence”.


So I hope that, on subsequent days in Committee and when we get to Report, the politicians in the Home Office will also do what the officials have been told to do: not seek to mislead us but use information based on the data.

The data the Minister cited on Monday was also partial. He told me:

“In 2022, there were around 17,000 referrals to the NRM—the highest annual number to date and a 33% increase on 2021”.—[Official Report, 5/6/23; cols. 1199-1203.]


That is correct, but what did he not say? He did not say that, according to the latest Home Office data that he cited, 49% of all referrals—half—are for exploitation in the UK. That has nothing to do with overseas or from small boats; 41% are for exploitation overseas. The biggest increase that contributed to his statistics was child exploitation, growing from 498 to 4,410 in the UK. I ask the Minister: are these abused children in the UK gaming the system?

16:00

Half of all referrals came from central government—his own department—and this was a 79% increase compared to 2021. If it were not bad enough that the Minister suggested it was the arrivees gaming to a much higher extent, he is not even accurately relaying the Home Office data. But it is even worse than that. The Home Office Analysis of Modern Slavery NRM Referrals from Asylum, Small Boats and Detention Cohorts was published on 4 May 2023. I quote from paragraph 2, “Key findings”:

“From January to September 2022, people arriving via small boats were no more likely to be referred into the NRM (about 7%) than those referred from the asylum population (also about 7%)”,

so there is no particular issue. The Home Office went on, in key finding 6:

“This analysis demonstrates that the behaviour of asylum claimants and those arriving on small boats … does not appear to be drastically changing (demonstrated by the consistency in the proportion of those populations who are referred to the NRM)”.

The Home Office’s own statistics, published on 4 May, show that behaviour

“does not appear to be drastically changing”,

but the Minister told us on Monday that it was. I hope he has an opportunity to clarify the record today, at the soonest opportunity in Committee, and to refer to the Home Office statistics published in May, not a political assertion. Maybe he thinks we do not read these things or care what Ministers say. Well, I read the data and I care. Clearly, Home Office officials are with me; that is why they cared when they accepted the official rebuke from the regulator in January.

A system not being gamed, assertions not backed up by data, and partial use of data to seek to mislead us—who is accountable for this? It is not a Minister, but it is a 17 year-old Eritrean girl trafficked for sexual exploitation in our country, where she will now not be referred for any protection and instead detained on her 18th birthday and shipped off to somewhere we do not know where and nor will she. According to the Government, it could be one of the 57 countries “safe” in Schedule 1. But we also demonstrated on Monday that, regrettably, for many of what the Government had said were safe countries, the Justice Minister, the noble and learned Lord, Lord Bellamy, in the conscientious way in which he responded to the Committee, and I respect him for doing so, said that they are not, but that a suspensive claim can be brought to the Home Secretary—not directly to the tribunal but to the Home Secretary—a mechanism that renders the whole point of the schedule entirely otiose.

The 2002 Act defined the word “safe” for the purposes of an individual review of a person. Now the Government think just that stating the country will suffice, but FCDO advice for seven on the list of 57 includes significant red areas and advice against all travel, and for others we showed through Home Office country notes that there is also widespread risk of persecution on the basis of personal characteristics. I asked what would prevent someone being returned to a third country considered safe but then that person being moved to an unsafe country or region. The noble and learned Lord, Lord Bellamy, gave a straightforward answer:

“I suppose that the direct answer is that one would have to negotiate an appropriate agreement with the country concerned”.—[Official Report, 5/6/23; col. 1229.]

I agree, but remember that the noble Lord, Lord Murray, earlier on Monday dismissed the need for such agreements to be in place. He said that

“they are not silver bullets”,—[Official Report, 5/6/23; col. 1138.]

but what is necessary for the Ministry of Justice is not necessary for the Home Office. Furthermore, as UNHCR has pointed out:

“Nothing in the Bill makes removal dependent on the receiving country having an effective asylum procedure, or agreeing to admit a person to”

such a procedure. Clause 5 sets out only two conditions for removal to a third country under the Bill but is silent on there being an effective system.

As an EU member state, the UK participated in 14 readmission agreements. The Minister said to us that the UK is party to 16, but I have not been able to find a list of those and nor has the House of Lords Library, so I would be grateful if he would provide a link to Members of the Committee of all those 16, plus the new ones which have been scrutinised by the International Agreements Committee of this House. As of May this year, we have new agreements with Albania, India, Nigeria and Pakistan, but not all those countries are considered safe in the schedule, so what is the interaction between those areas where the Minister has said we have agreements and those the schedule alleges are safe countries?

The Explanatory Notes are grossly misleading. Paragraph 1 states categorically that someone will be

“promptly removed to their home country or to a safe third country to have any asylum claim processed”.

This is repeated in paragraphs 5 and 15, in relation to their humanitarian or protection claims being processed. However, nothing in the Bill that the Explanatory Notes purport to explain provides for the processing in a country with which we have no agreement. Paragraph 3a) of the European Convention on Human Rights memorandum from the Government is equally misleading. It says that people will be removed to

“a safe third country for consideration of any asylum claims”.

Nothing in the Bill guarantees the process of their claims and, as the Minister, the noble and learned Lord, Lord Bellamy, said—with whom the Minister, the noble Lord, Lord Murray, disagreed—one would have to negotiate an appropriate agreement with the country concerned. The schedule fell apart when the noble and learned Lord, Lord Bellamy, replied to my noble friend Lord Scriven:

“In general terms, the Government’s view is that it is not desirable to enshrine in statute descriptions of which countries are safe or not, or of particular groups of individuals or those with protected characteristics”.—[Official Report, 5/6/23; col. 1229.]

That is exactly what the Government have put in Schedule 1 and Clause 6. At least I am not the only one who believes that the Bill, nor this schedule, nor these two clauses, are desirable. The Minister responsible agrees also, and I hope that he will take them out.

[Baroness Meacher (CB)]

My Lords, I support the intention expressed by the noble Lord, Lord Purvis, to oppose the question that Clause 5 stand part of the Bill.

Clause 5(1) seeks to put into effect the removal of any person who arrives in the UK other than through a safe route even though, as we have already debated at length, safe routes are virtually non-existent for the vast majority of people coming to this country from Afghanistan, Sudan or Eritrea, for example.

Amendments 27 and 30, tabled by the noble Baroness, Lady Hamwee, dealt with two of my major concerns about Clause 5, but there are other concerns. Amendments already tabled and some of those debated seek to protect victims of modern slavery and trafficking, as well as children. If this House approves those amendments, which I expect we shall, Clause 5 would contradict them. I will speak as briefly as I can. For example, Clause 5(1)(a) requires that the Secretary of State must ensure the person is removed, as the noble Lord, Lord Purvis, has said,

“as soon as is reasonably practicable after the person’s entry”

to the UK. Subsection (4) restricts that requirement if the person has made a protection or human rights claim, but only if the Secretary of State considers that there are exceptional circumstances which prevent the person’s removal. Newly arrived people with no knowledge of the language or systems of the UK would need assistance for any such claim, and the Bill restricts access to assistance. Under Clause 5, therefore, a person is likely to be removed before they have had a chance to make a protection or human rights claim. Also, as the noble Baroness, Lady Hamwee, has argued, it should not be possible for the Secretary of State to counter a protection or human rights claim, if one has been made, with a subjective power to determine that there are not “exceptional circumstances”. The inclusion of Clause 5 in the Bill would undoubtedly enhance the risks to victims of modern slavery or trafficking and to children, along with all others seeking asylum in the UK. I hope the Minister will agree that Clause 5 should not stand part of the Bill.

[Lord Kerr of Kinlochard (CB)]

My Lords, I would like to ask some questions of the Minister, in relation to Schedule 1 and Clause 6. I have four concerns about these provisions.

First, I do not understand the rationale for the list in Schedule 1 and I would be very grateful if the Minister could explain it. It seems to me that, of the 57 countries listed, with only two do we have any form of removal agreement: Rwanda and Albania. Does it concern the Government, as it concerns me, that we are setting out a list of destinations without having any international agreement underpinning it in relation to particular countries?

Secondly, some countries among the 57 listed in Schedule 1 are not party to the refugee convention, so they are in no way bound by the same commitments on the treatment of asylum seekers that bind us. Are the Government concerned about that? I am concerned about it, and I am inclined to think that they should be.

Thirdly, it is not clear to me that all the countries of the 57 in Schedule 1 have any kind of asylum system or procedure. I am not sure that all these countries recognise the concept of asylum in law. Can the Government assure me that I am wrong, and that although some of these countries are not party to the refugee convention—that is a fact—they all have working asylum systems? If not, are the Government not concerned about that? I think we should be concerned about it.

Fourthly, we must ask the Minister to construe the language “in general”, which occurs twice in Clause 6(1). The Secretary of State may add to the list in Schedule 1 if he is satisfied that

“there is in general in”

the country in question

“no serious risk of persecution”.

How are we meant to construe “in general”? I do not think it is the kind of language that should be on the statute book.

The second occurrence in the clause is that the removal of persons to a country to be added to the list is possible only if it would not “in general” contravene the human rights convention and our obligations under it. Hold on: pacta sunt servanda. It is not a question of whether “in general” there is a contravention of the human rights convention—there is or there is not. If sending somebody to one of these 57 countries would be a breach of our obligations under the human rights convention in any way, it does not matter if the Government think that “in general” it is all right. The language “in general” should not be here, both on constitutional and legal grounds and on grounds of pacta sunt servanda. If it would breach in any way our commitments under the convention—I believe it would —we should not add the territory in question to the list in Schedule 1.

My last point is also a question about how we should construe the language. Clause 6 talks not just about countries or territories that could be added but about parts of a country or territory. The noble and learned Lord on the Front Bench spoke eloquently about India when we last discussed this, and I have been thinking about what he said. If I were a serving diplomat, I do not know how I would persuade any country—particularly India, but any country—to accept an international agreement with the United Kingdom in which it accepted that parts of its country were unsafe for an asylum seeker. I do not see how any self-respecting country such as India could possibly accept an agreement including a restriction to a part of its territory where an asylum seeker might be sent. We need the Minister to explain to us how we are meant to construe, in Clause 6(1), “in general” and

“part of a country or territory”.

16:15

In my view, we cannot send people to countries that are not party to the convention and do not have an asylum system. Remember that we are sending people not to have our asylum processes carried out offshore by some other country. We will have declared these people inadmissible—they will never be allowed into our asylum process. We are going to deport them to other countries, where an application that they never made for asylum in those countries will be considered by us and by the country in question to have been made. But how can the country in question do that if it does not have a system for doing it? How should we accept that it is reasonable to require people to seek asylum somewhere else—which in my view is contrary to the convention—and to do so in a country that is not a party to the convention and has no asylum system? I put that all interrogatively—I may be wrong on all or several of those points—but the Minister needs to address them.

[Baroness Chakrabarti (Lab)]

My Lords, I agree with the noble Lord, Lord Purvis of Tweed, in the submission that Clauses 5 and 6 and Schedule 1 should not stand part of the Bill. The reasoning becomes increasingly repetitive and circular, because these provisions are parasitic on the meat of the Bill, which is really Clause 2. That is the duty that the Secretary of State is quite deliberately taking upon herself so that it looks as if no discretion is being exercised, she must remove people and therefore the courts have no ability to supervise that judgment. That is the heart of the moral and practical problem with the Bill, so when we look at the parasitic clauses that follow on from Clause 2, we come back to that central problem.

There are so many reasons why this is wrong in both principle and practice. As always, it is a privilege to follow the noble Lord, Lord Kerr of Kinlochard, a most distinguished senior diplomat and former Permanent Under-Secretary to the Foreign and Commonwealth Office—which is important. The poor old Home Office gets lumbered with all the tough talk and rhetoric and with translating press releases into legislation, but the foreign department has to represent this country all over the world, negotiate further treaties and hold its head up in its attempt to do so. The foreign department will no doubt try to persuade people that Mr Sunak is so right and that, as I said last time, we should be the hub of AI intelligence and the world regulator, and everybody should support the idea that these treaties should be formulated here. Once upon a time, we could have said that.

If any noble Lords, particularly on the Benches opposite, want to understand the importance of the refugee convention, not as it is being flexibly interpreted by the current Government but as it was intended after the war, they might care to read the correspondence between our wartime Prime Minister and the then Archbishop of Canterbury. That correspondence between Winston Churchill and William Temple is very revealing of what the obligations of the future treaty were going to be in relation to individuated justice for refugees, which of course is the problem.

We were treated last time to good cop, bad cop by two Ministers, from the Home Office and the Ministry of Justice respectively; I will leave Members of the Committee to decide who was which. But I think that the noble Lord, Lord Purvis, was right in his rather forensic—if I may say so—examination to point out some tensions in the case as it was put by the two Ministers.

The Home Office Minister concentrated, quite rightly, on the message as we have heard it thus far: this is about deterrence; we do not want people to come here; this is all about stopping the boats. Therefore, he stressed the automaticity of Clause 2 and the absolute commitment—no ifs, ands or buts—to a duty to remove anybody who comes by an irregular route; no matter how genuine a refugee, they must be removed. When, as amendment after amendment was debated, and noble Lord after noble Lord gave the litany of heartbreaking cases of trafficked people, of gay people who should not be sent back to certain countries, and so on, the Minister from the justice department pointed up the possibility of exceptional non-suspensive claims—it will be all right, there will be the possibility of individuated justice in those cases. But, of course, both positions cannot be the case, and they were not intended to be. It was excellent advocacy, perhaps, but it does not stand up, as the noble Lord, Lord Purvis, said so clearly in his introduction to the debate.

This is the blanket treatment of claims that were always intended to be considered in a case-by-case analysis. As the noble Lord, Lord Kerr, pointed out, there are countries, including very large democracies such as India, perhaps, that are perfectly safe for some people but not at all safe for others—because they are political dissidents, because they are queer, because they are women. That is conceded by the Home Office in the schedule that lists some countries as safe only for men.

It is a diplomatic nightmare to be creating this automaticity of “These are safe countries; these are unsafe countries” and to be telegraphing it in the schedule to the Bill. The noble Lord, Lord Murray, will say, “There has been this development for some years under Governments of both stripes to have inadmissibility and presumptive safety”. It is one thing to say to your officials considering individual claims that some countries might be prima facie safe, but you still have a duty to consider the individual asylum seeker before you to determine what their story is. That was always the intention in the refugee convention and that is the obligation on signatories to it—and, I would argue, not just signatories any more because non-refoulement has become accepted as a principle of customary international law. That is what we propose to breach by this legislation.

That is how serious it is. The Bill is wrong in principle, wrong in practice and internally incoherent. Certainly, the arguments that have been put by Ministers—elegantly, charmingly, patiently, late into the night—do not hold together, and these provisions should not stand part of the Bill.

[Baroness Whitaker (Lab)]

My Lords, following the eloquent speeches of my noble friend and the noble Lord, Lord Kerr, I would like to refer again to the proposal that Schedule 1 should not stand part.

Some of those countries breach protected rights. I ask the noble and learned Lord the Minister which of the countries on the list practise female genital mutilation and do not reserve refoulement only for men? Which criminalise homosexuality? Which criminalise humanism? Noble Lords may remember the case of the president of the Humanist Association of Nigeria, who has received a life sentence.

Surely it is very odd to remove people to those countries. Does the Minister think that that conforms to our signature to the treaties of international law?

[Lord Alton of Liverpool (CB)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Whitaker. I endorse everything that has been said in the debate so far, so ably introduced by the noble Lord, Lord Purvis. I particularly want to follow on from what the noble Baroness said to the Committee about the suitability of some countries in Schedule 1 as places to which people should be returned; my noble friend Lord Kerr and the noble Baroness, Lady Chakrabarti, developed that point in their interventions earlier. I will take one example but the arguments I am going to put to the Committee could be applied to other countries on the list as well.

The country I want to talk about is Nigeria. In a later group of amendments, I have Amendment 85C in my name, which seeks to establish

“how the Secretary of State will assess Equality”

provisions

“listed in Schedule 1 and the potential harm to those with protected characteristics including victims of Modern Slavery”.

However, I want to ask the Minister specifically to engage with the issue of justice in Nigeria. This is a country to which we have said it is safe to return men but not women. I argue that it is not safe to return anybody to Nigeria, given the way in which the internal factors in that country currently stand.

The seriousness of the situation was underlined by the visit of Karim Khan KC, the prosecutor for the International Criminal Court, to Nigeria in 2020. He is continuing the investigation into the war crimes and crimes against humanity perpetuated by Boko Haram and other factions—as well as the involvement, I might add, of the Nigerian security forces. That investigation began in December 2020 and continues. Whether or not the ICC will determine that a genocide or crimes against humanity are being perpetrated against the religious minorities in the north of Nigeria lies in the future, but the evidence of why this is a hostile environment in which people face outright persecution is overwhelming.

Simply consider the role of what are sometimes euphemistically called “bandit groups”. They have killed, abducted, forcibly converted and displaced vast numbers of people, many of whom end up in small boats. According to government figures, 4,983 women were widowed; 25,000 children were orphaned; and 190,000 people were displaced between 2011 and 2019, with more 3 billion naira paid to bandits as ransom for 3,672 individuals who had been abducted.

In one incident last year, IS West Africa killed eight people and kidnapped 72 people on a Kaduna-bound train from Abuja while, in 2022, Boko Haram killed at least 60 people from the community of Rann, in Borno State, and killed more than 15 women in Gwoza, also in Borno State. In June 2022, the United Nations reported that Boko Haram and splinter factions abducted at least 211 children, recruited at least 63 children, killed or maimed at least 88 children, raped or sexually violated 53 girls and attacked at least 15 schools. In September 2022, UNESCO estimated that 20.2 million Nigerian children were out of school as a consequence.

I think particularly of the plight of Leah Sharibu, who has just turned 20. At the age of 14, on 18 February 2018, she was abducted by Boko Haram, raped, impregnated and forcibly converted. She is one of 110 girls taken from the Government Girls Science and Technical College in Dapchi, in Yobe State. Here in your Lordships’ House, I met her mother, Rebecca. I promised that I would never miss any opportunity that might come my way to raise Leah’s case. I do so again today because it illustrates the dangers faced by people being sent back to Nigeria, whether they are women or men; indeed, if they come from religious minorities that do not fit a particular mindset or ideology, they are doubly endangered.

Elsewhere in the country, secessionist forces in the south-east of Nigeria and protests by the Indigenous People of Biafra led to gunmen killing, maiming and destroying the properties of citizens in the region. Armed forces against separatists have also been involved in at least 122 extrajudicial killings. Media reports suggest that more than 287 people were killed in the south-east between January and May.

16:30

Consider other rights that we take for granted. Some 75 years ago this year the United Nations promulgated the Universal Declaration of Human Rights, Article 18 of which insists that everyone has the right to believe or not believe or change their belief. Theoretically, Nigeria is signed up to Article 18 and all the 30 articles in the UDHR. But Article 18 is honoured, as the noble Baroness, Lady Whitaker, has just reminded us, only in its breach in Nigeria, and there are no safe and legal routes for those who are subjected to persecution for their religion or belief. With a cap on total numbers, there should be a safe and legal route and no refoulement for certain categories of people.

I am particularly glad that the noble Baroness, Lady Williams, is in her place today, because this is an issue I have raised previously with her. As the Government now consider the creation of further safe and legal routes—I welcome what they have said about this—persecuted people might form part of that. If they allowed for, say, a maximum of 5,000 people per year, that would be a great step forward for many endangered people in many parts of the world.

The urgency of addressing this issue is illustrated by the case of Mubarak Bala, president of the Nigerian Humanist Association, who was sentenced to 24 years in prison for a “blasphemous” post on Facebook. He received an excessive sentence but is at least still alive to challenge it. In most cases the extremist sentiment fuelled by blasphemy laws and accusations, coupled with the impunity surrounding blasphemy-related violence, means that many of those accused never get to have their day in court and are in effect lynched, as occurred in the case of Deborah Samuel in Sokoto state. In an indication of the degree of impunity surrounding blasphemy allegations, only three men among the mob who killed her were arrested for beating her to death and her immolation. They were merely charged with “public disturbance”, as opposed to murder. Moreover, they were freed by Chief Magistrate Shuaibu Ahmad in January 2023 due to the absence of the police prosecution during the scheduled hearings.

Nigeria is one of 71 countries that criminalises blasphemy in a law introduced during the colonial era that contravenes the country’s constitution which theoretically allows for the freedoms of thought, conscience and expression that we all uphold in this House. It is also incompatible with the nation’s international obligations with regard to those Article 18 obligations that I referred to earlier. In addition, the enactment of sharia penal codes in 12 northern states effectively rendered Islam a de facto state religion in violation of Nigeria’s secular constitution, which only theoretically recognises sharia courts for non-criminal proceedings. As well as contravening constitutional stipulations, this action effectively endowed the systematic marginalisation of followers of non-majoritarian expressions of faith that has existed for decades with quasi-legality.

The Tijaniyya Sufi singer Yahaya Sharif-Aminu, whose death sentence was overturned on a technicality and following an international outcry, but who still faces a retrial and a possible death sentence, is currently petitioning the Supreme Court, challenging Nigeria’s blasphemy law and the legality and constitutionality of the Kano sharia penal code. He is not alone in facing wholly unacceptable penalties for simply expressing dissent.

Consider the denial of freedom of expression and arbitrary arrests—breaches of Article 19 of the Universal Declaration of Human Rights. For seven months there was a ban on Twitter, while the Nigerian Broadcasting Commission suspended Vision FM for criticising the Government, sanctioned four media outlets and suspended 52 broadcast stations. The Government shut down five pro-opposition media outlets.

Last November, a Kano court sentenced social media celebrities Mubarak Muhammad and Nazifi Muhammad to detention, flogging and a fine for defaming the governor. The blogger Bashiru Hameed was detained for publishing the criminal record of the Ogun state governor. Journalists Abdulrasheed Akogun and Dare Akogun were detained for WhatsApp messages that alleged corruption by the Kwara state governor. Peoples Gazette staff were arrested for a newspaper article said to “defame” the former chief of army staff, with Umaru Maradun detained for undisclosed reasons. Meanwhile, radio worker Casmir Uzomah was detained for airing an “offensive” song.

Recall that several prominent End SARS activists were obliged to flee the country in an irregular manner after surviving the Lekki toll-gate massacre in October 2020 and following a harsh crackdown. Among those who stayed, nine detained protesters were acquitted and released by a judge in Oyo state only in January 2023, and at least 30 remain in pre-trial detention across the country.

I am telling the Committee all this because we are going to send people back to Nigeria. We have said that it is a safe place for men. This cannot be right. Does anything that I have said to the Committee suggest that this is a safe country to which people should be returned? Many refugees or asylum seekers flee their countries after facing injustice, mistreatment, harsh imprisonment without due process and even threats to their lives on account of peaceful political protest or because of their religion or belief.

Nigeria is also a nation on the edge of a precipice. It represents nearly 3% of the global population in extreme poverty, with the emergence of a critical security vacuum that has resulted in citizens across the country facing terrorism or violent armed groups, and being commoditised, as abductions for ransom have unfortunately become a growth industry. The UN says that 1.4 million people are internally displaced. Over 95 million Nigerians are living in poverty, and food inflation reached 22% in July 2022.

As violence by non-state actors continues, the economic and political climate remains uncertain following the inauguration of a president whose victory remains disputed and who, in any case, belongs to the party that oversaw Nigeria’s critical decline. Observers warn of a final descent into failed statehood which in turn could spark an exodus of people legitimately in need of safety. In the absence of defined legal or regular routes for those seeking refuge in the UK who perhaps have family or other ties to the country, these people would also be denied entry. Not only does this suggests that what we categorise as a safe country does not match the reality, it illustrates why this Bill misses the point.

With over 100 million people displaced in the world, we need a strategy to tackle the root causes, not legislation which will do nothing to end the desperate journeys of people who are desperate to make better and safer lives for themselves and their families.

[Lord Carlile of Berriew (CB)]

My Lords, I will not repeat what has already been said. I agree with most of what has been said in the preceding speeches, particularly the remarks made by my noble friend Lord Kerr about the inadequacy of Schedule 1, and all the examples that have been given, including those given very clearly by my noble friend Lord Alton, of cases which create real dangers of injustice which are plainly contrary to the international conventions to which this country subscribes. Instead, I want to obtain confirmation from the Minister of some short propositions which relate to Clause 6 of the Bill.

Clause 6 provides that the Secretary of State may amend Schedule 1 in certain circumstances. Can the Minister confirm that if a cogent application is made to the Secretary of State to amend Schedule 1 in particular ways and he refuses, that would immediately open the gate for judicial review proceedings? I foresee a menu of 57 opportunities in Schedule 1 for 57 applications for judicial review—perhaps a few fewer—being made by well-known and well-funded NGOs for amendments to be made to that schedule because of circumstances in those countries.

Further, would not the Secretary of State face considerable obstacles if such judicial review applications were made? First, there is the weakness of the standard of proof that is set by the Government for themselves—“if satisfied”, whatever that means. Secondly, in Clause 6(1)(a), which was referred to earlier, the Secretary of State can add a country or territory if satisfied that

“there is in general in that country or territory, or part, no serious risk of persecution”.

Does that not contradict certain other legal provisions which, for example, provide guarantees of safety to a group of people we discussed earlier this week—the cohort of LGBTQ+ people who might be affected?

Thirdly, Clause 6(1)(b) states:

“removal of persons to that country or territory, or part, pursuant to the duty in section 2(1) will not in general contravene the United Kingdom’s obligations”.

Is that not pathetically weak, and contradictory to other legislation? I again take the LGBTQ+ cohort as my example.

If that analysis of Clause 6(1) and Schedule 1 is not entirely coherent, surely it is enough to persuade the Government that they should really reconsider the drafting of Clause 6 and the contents of Schedule 1. If they insist on keeping Schedule 1, it should, from the start of the Bill coming into effect, reflect all the dangers in all countries in which there are dangers for certain groups of people who could not be described as people “in general”. This is ineffective, and I am sure it will put substantial fees into the hands of my learned friends, but that is not what this place should be trying to do.

[Baroness Butler-Sloss (CB)]

My Lords, I support these amendments and the speeches that were just given. I want to make two points only. First, it is extraordinary to me that Schedule 1 shows a list of countries with which this country has no agreement. I cannot understand how one can put into primary legislation a list of countries with which the Government hope to have an agreement, when that is not yet happening.

Secondly, I spoke earlier, at greater length, about the unaccompanied child who comes to the age of 18. Your Lordships have only to think of a child of 10, and we know that some children of 10 have come through. With any luck, a child of 10 will not be kept in Home Office accommodation; he or she is likely to go into the care of a local authority under the Children Acts and will very likely be fostered. It is comparatively easy to be fostered at 10. The child would have spent eight years at an English school, would have grown into speaking English, probably forgetting his or her own language to some extent, and will be settled.

Immediately after the age of 18—subject to the Home Office’s inordinate delays in removing people, but assuming that it achieves something better in the future—he or she can be removed and will go to a country. At the moment, there is only one, unless the child is Albanian, when they would have gone back earlier. That child aged 18, just grown up, will find him or herself in a country the language of which they probably do not speak and he or she will know absolutely nothing. I hope your Lordships agree with me that that, quite simply, is cruel.

[Baroness Hamwee (LD)]

My Lords, I return to the terminology in general. I had tabled amendments in the last group on Monday night, which was a very big group. I could not find a polite way of describing drafting that I regarded as very poor. I resorted to saying that I thought it was

“not a very imaginative way to describe a situation”.

The Minister responding said that the term “in general” is

“not new: it is the test set out”

in legislation of 2002. He continued:

“Including a country in Schedule 1 simply requires the Secretary of State to be satisfied that it is considered generally safe”.


He then said that “the individual”—and noble Lords are absolutely right to remind us that we are talking about individuals, not amorphous cohorts of people—

“would still have the opportunity to challenge their removal”.

Later in the debate, when a similar point came up again, the Minister said:

“This is going to be a matter for the judicial process—through the appeal process, the legal advice and the legal representation that these people have. If they can show serious and irreversible harm, then they will not be sent to these places”.—[Official Report, 5/6/23; cols. 1216-35.]


Having criticised the terminology in general, given that the opportunities to challenge Home Office decisions in 2002 were considerably more than are presented in the Bill, I would like a detailed understanding of the Minister’s explanation of using the processes available.

16:45

[Lord Scriven (LD)]

My Lords, in Committee on Monday, the noble Lord, Lord Murray, used the example of India. We need to question not just how the list has been devised but the minimum criteria the Home Office wishes to have for each country before it even starts to discuss any agreement with it.

India does not have national asylum legislation: anyone who is a non-Indian citizen is determined as a foreigner under the Registration of Foreigners Act 1939, the Foreigners Act 1946 and the Foreigners Order 1948. This legislation generally governs foreigners within the territory of India. Article 2 of the Registration of Foreigners Act defines a foreigner as

“a person who is not a citizen of India”.

The other two pieces of legislation use the same definition. The Act and the order grant the Indian Government the power to restrict the movement of foreigners and carry out compulsory medical examinations, limit foreigners’ employment opportunities, and control the ability to refuse and return foreigners to their home country. All of these contravene the UN refugee convention. Refugee status is granted, but only to certain nationals of neighbouring countries. People with certain characteristics—for example, Muslims—are predominantly excluded from being granted refugee status.

People who are foreigners in India have further challenges when seeking asylum there: because of restricted employment, they find that they do not have sustainable livelihoods; there is no reliable community support network for refugees there; and access to specialised services for certain people or groups does not exist.

Quite bluntly, I ask the Minister this: is that the kind of situation he wishes to send some of the most vulnerable people in the world into? Ultimately, for every single country listed in Schedule 1, what criteria are the Home Office using before starting any negotiation with those countries?

[Lord Hannay of Chiswick (CB)]

My Lords, many very cogent points have been made in this debate, and I will not repeat them, but I will mention one or two relating to the international dimension. I, too, believe that the use of “in general” is one of the slipperiest pieces of drafting that I have seen in a long time. I suppose that the Home Office may have been ashamed to put “in principle”, the words more often used to get out of commitments in international law than any others, but it means much the same thing. It has no place in this legislation.

Secondly, it seems an enormous hostage to fortune to put a list of countries described as “safe” into legislation tabled in March this year and which will not become statute until much later this year at the earliest. By that time, I suspect that quite a lot of things will have happened in some of the countries listed that will make them completely unsafe. I do not want to refer to individual countries, although people will be aware of what happened last week in Uganda. It is a moving agenda, and it is not wise to fix it in that way.

My third and last point is that there has been much talk of the Government concluding agreements with countries to enable us to send asylum seekers—without considering their asylum applications—to them. I imagine —and perhaps the Minister could reply on this point; it would be quite helpful if he could listen to what I am saying—that it would be useful to know whether those agreements would come before Parliament in the form that the International Agreements Committee of your Lordships’ House takes them. I take it that the answer will almost certainly be “No, they won’t, because they will be based on a memorandum of understanding”. This House has already debated this and established beyond peradventure that the use of a memorandum of understanding in the case of Rwanda was entirely designed to avoid any parliamentary scrutiny. Will the Minister say whether an agreement that will be reached for return will be subject to the international agreements procedure—CRaG—or not?

[Lord Paddick (LD)]

My Lords, I am very grateful to my noble friend Lord Purvis of Tweed for his devastating critique of the government reasoning behind the measures in this Bill. As he said, the measures could have serious consequences for women and girls who have been trafficked, and he provided some examples of the sorts of numbers that might be involved. The facts presented by my noble friend appeared to show clearly that the system of referrals to the national referral mechanism is not being abused. As he said, much of the increase resulted from claims from those who were already legally in the United Kingdom.

I am very grateful—going back to Monday—to the noble and learned Lord, Lord Bellamy, for indicating something of the thinking behind this Bill as far as the Government are concerned. He said:

“All I am saying is that one should have this power; I am not necessarily saying the circumstances in which one should exercise it”.—[Official Report, 5/6/23; col. 1229.]


I am beginning to wonder whether this is a sort of remake of “The Wizard of Oz”, with these very scary things being put up front with very little behind them. In reply to what my noble friend said about the vulnerable women and girls who could be detained and then deported from this country, the Minister said it might not happen because, as he said, all the Government are saying is that the Government should have the power to do that, but they are not necessarily going to use it.

In relation to Schedule 1—the safe countries—many noble Lords have given graphic examples of why countries do not belong on a safe list. I have to say: what is the point of the list? As the noble and learned Lord, Lord Bellamy, said on Monday, in response to the noble Lord, Lord Cashman, who gave a particular example of a gay man being sent back to a hostile country:

“Secondly, and in practice, this is all predicated on the country being willing to accept them. At the moment, the only agreement we have is with Rwanda. There may well be others. I hesitate to give any commitment but it seems, if I may say so, most unlikely that the fears of the noble Lord are well founded. It is most unlikely that these postulated circumstances will arise in practice”.—[Official Report, 5/6/23; col. 1234.]


Well, if the Government are saying that each individual case will be considered on its merits, and if a country that is on the list is found to be not safe for that individual, what is the point of the list? What is the point if there is only one country—or potentially two countries—on the list to which the Government can return people? Is this just to try to scare the horses, with no substance behind it? That is increasingly what this Bill looks like.

[Lord Coaker (Lab)]

My Lords, I start, as other noble Lords have done, by thanking the noble Lord, Lord Purvis, for his introduction, the quality of his speech and the comments that he made, which deserve a full answer, and I thank all noble Lords for the detailed and important contributions that they have made.

In that light, I ask the Minister whether he will take back to Downing Street the fact that we do not need to read on the front page of the Daily Telegraph that the PM is set to overrule the Lords on boats Bills. The quality of the contributions that have been made in today’s debate show the importance of the consideration in detail of the legislation. Indeed, the Minister will know, as has been reiterated through the usual channels, that it is not the view held by every single noble Lord that the Bill should be blocked; indeed, we on the Front Bench of His Majesty’s Opposition have said categorically that we will not block the Bill. However, we will not be intimidated by having people, even the Prime Minister, attempting to intimidate us into not properly scrutinising, in a detailed and forensic way, the operation of the Bill.

We can see from the way in which noble Lords have put forward various points and considerations today that there are real questions to answer. I do not believe that the Government Front Bench here or the usual channels did that; to be frank, I think they were probably taken by surprise by it as well. But it is important that we in this House recognise that we have a role to play, which is to revise and improve legislation. The Government are then perfectly entitled to turn around and say, “We totally disagree and we’re not going to take any notice”, but we do not need to be lectured on how we should not attempt to revise it in Committee or on Report. That is an important point to make.

The other point to make as we consider this is for us all to wish the noble Lord, Lord Murray, well in his attempt to get the impact assessment out of the Home Office well before Report. It is too soon for me to ask him in a nasty way whether he has yet had any success, but even if I do not return to this throughout the Committee, I am sure a number of other Members will ask him how it is going—so I will start the process by asking the noble Lord how it is going with regard to getting the impact assessment out.

I will say, without repeating many of the points that have been made, that my noble friend Lady Chakrabarti summed up a point that has been reinforced by many noble Lords. At their heart, Clauses 5 and 6 and Schedule 1 give effect to Clause 2. In other words, the Government require a blanket ban on asylum claims and therefore require, in a blanket way, people to be removed from the country. I have said time and again that that removal, as we have heard from many noble Lords, is without any real understanding of where to or what the consequences will be. I ask again: is it a fact that the Government believe that the threat of deterrence overcomes or supersedes individual human rights? That goes to the heart of what we are debating, and is a point that the noble Lords, Lord Carlile, Lord Kerr and Lord Hannay, have made on numerous occasions. Is it the case that the Government are prepared to accept that, under Clauses 5 and 6 and Schedule 1, individuals may well be at risk of persecution or may have a well-founded asylum claim but, because they have arrived irregularly, that does not matter and they are going to be sent to wherever? Is that the case or not? We could do with knowing the answer to that.

17:00

At the end of the day—as the amendments from my noble friend Lord Cashman and the noble and learned Lord, Lord Etherton, say—there are countries listed in Schedule 1 where it cannot in any sense be confirmed that an asylum seeker who is gay will be safe. Victims of modern slavery and trafficking will potentially be returned. Fundamentally, Clauses 5 and 6 and Schedule 1 mean that there is no case-by-case assessment of the individual rights of an asylum claim, and therefore they will be automatically returned. That, at its heart, is not consistent with the UN convention on refugees or any of the various international treaties we have signed up to.

I return to the question of refoulement. Is it the case that we could return somebody to Rwanda and that person could then be sent back to another country where they might be at risk of persecution or various human rights abuses? How will Clauses 5 and 6 and Schedule 1 work with respect to the general principle of non-refoulement that we have had? I think it was the noble Lord, Lord Purvis, who asked a question about refoulement; it might have been the noble Lord, Lord Kerr. A question was certainly asked about the whole point of refoulement and what the Government’s position is with respect to that.

At the heart of this, because there is no case-by-case assessment, under Clauses 5 and 6 and Schedule 1 we very much run the risk—if the situation is not inevitable —of individuals who have a quite legitimate case for the granting of asylum being returned to dangerous situations. As such, there are very real concerns across the Committee about that.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, with permission, I will first respond to the first point from the noble Lord, Lord Coaker, and confirm that the Government’s Front Bench was as surprised by the report in the Daily Telegraph as everybody else.

[Lord Coaker (Lab)]

Can I just confirm that the Minister means the Lords Front Bench?

[Lord Bellamy (Con)]

Yes, the Lords Front Bench—this Front Bench. I cannot speak for other colleagues, but I can assure the Committee that no one is attempting to intimidate this House. As I understand it, the Prime Minister is misreported in the Daily Telegraph—it is not the first time the press has misreported a politician—and the Government fully recognise the role that this House has to play in scrutinising the legislation. The Government’s duty, if I may say so, is to listen, reflect on what is said and respond as they think fit, depending on the strength of the points made and the Government’s general policy. I emphasise that there is no question but that this legislative process should be followed duly and properly throughout.

That said, and in relation to following established due process, as it were, we debated Clauses 5 and 6 in detail in Committee on Monday. With your Lordships’ permission, I will not repeat what I have already said in that respect and refer your Lordships to the record in Hansard. To the extent that some points have been repeated, I refer to what was said in the last debate.

If I may also respectfully say so, on various other points that have been raised—for example, in relation to Clause 2, to trafficking, to unaccompanied children and to agreements with third countries and so on— I will not go over the ground that has already been covered or is to be covered in debates on other clauses. These are matters that we are debating on another occasion—the legal rights and remedies, for example—so for today’s purposes I will concentrate on Clauses 5 and 6.

I should perhaps once again go over the ground of what Clauses 5 and 6 actually say. If I am right and your Lordships accept the analysis, I venture to suggest that at least a considerable part of your Lordships’ concerns may be reduced or laid to rest.

In simple terms, Clause 5 deals with two different groups. The first group are nationals, including persons holding an identity document, of the European countries listed in new Section 80AA of the 2002 Act, which are the EU member states plus Switzerland and Albania. If a national of one of those countries makes an asylum or human rights claim, they may none the less be removed unless there are exceptional circumstances. The exceptional circumstances, which again were referred to today by the noble Baroness, Lady Meacher, are defined in Clause 5(5). This part of the Bill is essentially the same as the structure that has stood for many years, including when we were part of the EU, with the addition of Switzerland and Albania. These are safe countries and, in the Government’s view, no reasonable objection can be made in relation to this group.

Now we have the second group, who are nationals of all other countries: those outside the European countries defined in new Section 80AA. What is the position in relation to those nationals? The first point to make is that if the migrant is a national of another country—with all respect to the Republic of Ghana, the Republic of Uganda or India, let us take Nigeria—and they make an asylum or human rights claim, for example because of a risk of persecution for their sexual orientation, they cannot be sent back to that country. That is clear from Clause 5(8), so a lot of the concerns expressed about persons being sent back to these countries will relate to nationals of those countries who do not want to be sent back to them. Unless others correct me, if they make a protection—that is to say, an asylum or human rights—claim, they cannot be sent back as nationals to those countries where they fear persecution. That is a very considerable safeguard.

Where can they be sent back to? They can be sent back only to another Schedule 1 country, but subject to very important conditions. The most important condition in this context is that set out in Clause 5(3)(d): only if there is reason to believe that they would be admitted to that country. In other words, it depends on whether we have an agreement with that country to take them back. That is not at present the case, except in relation to Rwanda, but it may in future be the case in relation to other countries.

To take a point raised by the noble Lord, Lord Kerr, or possibly the noble Lord, Lord Carlile, as to whether such future agreements would be—forgive me, it was the noble Lord, Lord Hannay—subject to parliamentary scrutiny, that is a matter for the future. I cannot commit the Government on that here at the Dispatch Box. However, I think your Lordships can be reassured that the availability of all kinds of remedies and the force of public opinion in this country would necessarily require a very full debate to take place before we made an agreement with another country. There is the constitutional safeguard of the constitution of public debate in that regard.

There is no indication that the countries mentioned in this debate—very understandably, Nigeria, Ghana, Uganda and even India—are likely to be, in any foreseeable future, places to which the relevant migrants could be sent. If we were ever to reach an agreement with another country, the Secretary of State has powers in Clause 6, in particular Clause 6(3), to exclude from that agreement persons of particular sexual orientations or with particular protected characteristics set out in that clause. That is a further protection against the fears noble Lords have expressed.

If all of that were to fail, it remains the case that the individual affected could make his suspensive harm application on the basis that he would suffer irreversible serious harm in that context. I think I can legitimately offer noble Lords reassurance that a great deal of the fears understandably expressed in your Lordships’ Committee rest on a particular view of the Bill that is not entirely correct.

I was asked by the noble Lord, Lord Paddick—it was implicit in most of the other comments—what Schedule 1 is for. I think the noble Lord, Lord Kerr, asked what the rationale of Schedule 1 is. The answer is that Schedule 1 is a reproduction, an amalgamation and a restatement of all the existing legislation from 2002 onwards, in which various countries over the years have been added as safe countries. For example, in 2005 the Labour Government added India on the basis that it was, in general, a safe country.

This also enables me to deal with the “in general” point, which has stood as a statutory point for the last 20 years at least. It might not be entirely within the active career of the noble Lords, Lord Hannay and Lord Kerr, but it has been on the statute book for 20 years. It has not so far given rise to any particular difficulties. That is the background to what we are considering.

In the future, it might be appropriate to keep Schedule 1 updated; it might be necessary to make changes from time to time. Let us cross those particular bridges when we get to them. At the moment, there is no practical possibility of Uganda, for example, accepting migrants who arrive in Dover into Uganda. It might be, to take a point raised by the noble Lord, Lord Carlile, that the existence of Schedule 1 or the failure to amend it, might be challenged in judicial review. If I may respectfully say so, it would be a somewhat adventurous case to compel a Minister to legislate or to amend primary legislation, but let us again cross those bridges when we get to them.

I hope that I have not taken up undue time and have covered most of the questions that I was asked. I am sure that I shall be reminded if I have not done so; I will do my best to answer them, if anyone reminds me.

17:15

[Baroness Whitaker (Lab)]

The Minister kindly said that, if he had not answered anything, he would do so. Would he please write to me about which countries practise female genital mutilation, criminalise homo- sexuality and criminalise humanism?

[Lord Bellamy (Con)]

I am grateful to the noble Baroness for her question, but I cannot answer it today at the Dispatch Box. My respectful reply is that this issue does not arise for the reasons I have given. The Bill does not envisage, at the moment, returning people to such countries. The general position is that we can continue discussing the provisions on legal requirements, trafficking, unaccompanied children and so forth, but this part of the Bill is an essential part of the Bill. I therefore beg to move—

[Lord Carlile of Berriew (CB)]

I am most grateful to the Minister and have great respect for his legal analysis. However, I will correct him on the point I made about judicial review. I was not saying that a judicial review could be taken in which the order would be for the Minister to amend the law. The Minister cannot amend the law; we in this Parliament amend the law. The application would be for a judicial review of the refusal of the Minister to take steps to amend the law. That is quite a different matter, and I do not apprehend any difficulty in making such an application for judicial review.

[Lord Bellamy (Con)]

My Lords, I apologise to the noble Lord, Lord Carlile, if I misunderstood his point. I respectfully continue to beg to differ as to both the likelihood of such judicial proceedings or the relevance of such judicial proceedings to today’s stand part debate. So, if your Lordships permit me, I beg to move—

[Lord Swire (Con)]

I draw attention to my entry in the register of interests. I ask, gently, whether my noble and learned friend the Minister would not agree that it is worth reminding ourselves that some of these countries—indeed, all those we talked about in the last hour—are Commonwealth countries, including Uganda, India and Ghana. It is worth remembering that Rwanda is not only a Commonwealth country but the current chair-in-office of the Commonwealth, so, surely, that must count for something.

[Lord Bellamy (Con)]

I entirely accept the point my noble friend makes and thank him for it.

[Lord Kerr of Kinlochard (CB)]

The noble and learned Lord is so reassuring, and his manner is so friendly, that one is tempted to believe that this might all be as good as he says. On the two-part process, he says that the list sets out possible destinations, but that the Secretary of State would make a judgment about the individual and whether the individual should not be sent to a particular country for reasons particular to the individual. If it were the noble and learned Lord making these decisions, I would be very reassured; unfortunately, it is the Home Secretary.

I am sorry to press the Minister but he has not really answered my question. He says that the list is based on history, but in the past we have not sent people compulsorily to go through an asylum process in another country—so there is something new here. Further, we have not been sending people to countries where there is no asylum process but we are insisting that they must seek asylum there. I do not think the noble and learned Lord has addressed that point.

I would also be grateful if the Minister would construe for us the language in the first paragraph of Clause 6, which addresses “in general” and “a part”. I have not heard his answer to my question as to why it is all right that a country should not in general contravene the human rights convention—implying that if in particular it does, we do not care—and, secondly, why it refers to part of a country or territory. I do not understand how we can get an international agreement with a counterpart. If I am a negotiator, how do I persuade him to accept that there are parts of his country that are unsafe and parts of his country that are safe? Surely the agreement has to be with the other country in respect of the full territory of the other country, not in respect of part of the territory.

[Lord Bellamy (Con)]

My Lords, in relation to the latter point, I repeat the point I made on Monday that this is precautionary. There is no reason to deprive oneself of the possibility of providing for “a part”. With an enormous country such as India, it may be that up in Nagaland or somewhere there are some disturbances, but that does not prevent us saying that India is a safe country. That is the Government’s answer to the first point.

Our answer to the second point is that the words “in general” have—I am open to correction and I will correct myself if I am wrong—stood for 20 years on the statute book without difficulty and do not preclude, in an individual case, an application being made to oppose removal on the grounds of irreparable harm. It is the combination of a general view that the country is safe with the possibility of individual protection. Those are essentially the answers I gave on Monday.

I entirely accept the noble Lord’s point that this is new, but, for the reasons I have tried to explain, it is a workable and, I submit, balanced approach to a very difficult problem which the Bill is trying to solve.

[Baroness Chakrabarti (Lab)]

As always, the Committee is very grateful to the Minister. I want to be absolutely certain that I have understood his case, because this is so important. My understanding is that he is reassuring the Committee on the basis that, first, nobody is going to be sent to the country that they fear in the first place—they are not going to be sent back directly to the country that they have escaped from and which they say was originally persecuting them—and, secondly, they can be sent only if there is a deal with a country. So maybe this is all going to be rhetoric in the end: we are going to tell the British people that we are stopping the boats, and we are going to warehouse more and more people under this whole edifice because there will be a duty under Clause 2 to remove people to places where they are irremovable to because there is no deal. Thirdly, the Minister points to the little chinks in the scheme whereby somebody might make some kind of exceptional non-suspensive claim. That is what I understand to be the three parts of his case.

On sending people to third countries that are unsafe because they are gay or because there is some other reason why that individual person would be at risk, it matters not that they would be unsafe in a third country or unsafe in a first country. In relation to the other little nudges and winks that he offers us—that this is perhaps fiction because in the end we do not have deals with a lot of these countries—that might be some comfort to people coming, and maybe even to those smuggling them, but it is certainly no comfort to the British people on the cost or on the toxicity of the debate we are having about stopping the boats, when actually the boats are not likely to be stopped.

[Lord Bellamy (Con)]

My Lords, it is a question of judgment. The Government’s judgment is that this legislation will go a long way towards reducing the terrible risks that people and unaccompanied children are facing in crossing the channel in difficult circumstances, and will destabilise the business model of the people smugglers. Those are surely legitimate objects for any Government to pursue.

The noble Baroness’s analysis is essentially correct: if I am a national of a particular state and I make an asylum claim or human rights claim then I cannot be sent back to that country; I could be sent back to a country with which—she puts it somewhat colloquially, and I would not quite use these words—we have a deal. The country with which we have a migration partnership at the moment is Rwanda, so that is still a possibility, subject to the individual in that case being able to make an application for either a factual suspensive application or an application based on imminent and foreseeable and serious harm. That is how it works, and that is how the Government see it.

While I am on my feet, I will address the points made by the noble Lord, Lord Coaker, about whether the threat of deterrents supersedes individual human rights. For the reasons I have given, our answer is that there is no question of superseding individual human rights due to the protections I have just explained. Refoulement is covered by the existing agreement with Rwanda, and I am sure it will be covered in future agreements.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I wonder if an answer could be given to the question from the Minister’s colleague on the Benches behind him, who asked about Commonwealth countries. Would the Minister agree that many of the Commonwealth countries have laws which criminalise homosexuality? Indeed, Uganda has just passed legislation which says that the death penalty can be used in relation to homosexuality, and in India there are currently a lot of issues and questions about the treatment of Muslims there. There might be very real issues even when it comes to Commonwealth countries.

[Lord Bellamy (Con)]

My Lords, as the noble Baroness says, there might indeed be issues. Their legislation is a matter for them. The fact that they are members of the Commonwealth which upholds, or seeks to uphold, barest basic standards is a relevant background consideration, as the noble Lord pointed out.

For the reasons I have given, as best I can, the protections in the Bill are adequate to deal with the problems that have been raised. I respectfully say that Clauses 5 and 6 and Schedule 1 should stand part of the Bill.

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister for his thorough response, and to those who have spoken.

I looked at the reference to the Commonwealth when the Bill and the schedule were published. It is worth noting that 76% of Commonwealth countries are not considered by this Government to be safe, because 76% of the Commonwealth is not in the schedule. That is not us questioning it; that is the Government making their own decision.

The Minister, in his typically emollient way, suggested that we do not really understand these clauses and that if we did we should not be concerned because, as he put it, the legislation will have no practical operability. We are in a situation where the Home Office is doing the reverse of virtue signalling, which is to try to create, as my noble friend Lord Paddick indicated, the most punitive and threatening environment, of which the justice department will have to pick up the pieces. The Minister has been at pains to point out that there are many elements which would mean that there is no practical operability, but we are being asked to legislate for this, and on the basis of a lack of agreements.

On Monday, the Minister said to me:

“I suppose that the direct answer is that one would have to negotiate an appropriate agreement with the country concerned”.—[Official Report, 5/7/23; col. 1229.]


As the noble Lord, Lord Kerr, and others indicated, the Government have not done so, but they are still asking us to legislate. The Minister said that, when we are negotiating some of these agreements in the future, there would be a “force of public opinion” on the agreements and debate. But on the only one that we have, with Rwanda, there was no debate or consultation. We were surprised by it. It was not a treaty that was ratified by Parliament; it was an MoU. The International Agreements Committee forced a debate on the MoU in this House, in which noble Lords took part, and the committee raised the concern expressed by the noble Lord, Lord Coaker, about refoulement. Unfortunately, this is the pattern of the Government.

On Monday, the Minister was not even able to confirm to me—he said he would write to me and I am grateful for that—that there are child facilities in the Rwanda agreement, because it was not designed for that in the first place. That addresses the point that the noble and learned Baroness, Lady Butler-Sloss, indicated with regards to those who are children. I referenced 73 children, up to 2022, who would be in the situation of being referred to protection and then on their 18th birthday would receive, under the Bill, a third-country notice, and they would have no idea what that country would be.

17:30

I say to the Minister that it is not the case that someone saying that, as he put it, they do not want to go back to a country is sufficient. The bar in Clause 38(4) is high. It is not a case of someone not wanting to go to a country. It involves an application to the Secretary of State who, under the Bill, has a duty to ask the country itself whether that person would be at risk. What on earth is that country going to say? “That person is going to be at risk, so please don’t send them here”—of course that is not going to happen. That is in the Government’s Bill.

The noble Lord, Lord Kerr, raised a point about the use of “in general”. I am puzzled by the reference to the fact that we have a 20 year-old precedent for this. I would be grateful if the Minister could write to me about that. What we do have in Section 80B of the 2002 Act is the definition of a safe third state. There is no reference to general terms within that. Section 80B(4) says:

“For the purposes of this section, a State is a ‘safe third State’”,

and it has three categories under paragraphs (a), (b)(i) and (ii), and (c), and it has no reference to “in general”. What it does have, in specific terms, under paragraph (c) is that,

“a person may apply to be recognised as a refugee and … receive protection in accordance with the Refugee Convention”.

It is our law that we do not send someone to a country if it is not a signatory to the refugee convention. That is now being absolutely turned on its head, and there is no protection for that. I would be grateful if the Minister in writing to me could indicate how the Bill sets itself against the 2002 Act, which is not being repealed.

A number of other areas in this group have been raised by noble Lords. We will have to return to this. There has been an insufficient response. Simply saying that we need not fear because legislation we are being asked to pass is not a danger because it will not be operable is no way of making legislation. In the meantime, I withdraw my opposition to the clause standing part.

Clause 5 agreed.

Schedule 1: Countries or territories to which a person may be removed

Amendments 41 to 52 not moved.

Schedule 1 agreed.

Clause 6: Powers to amend Schedule 1

Amendments 52A to 54 not moved.

Clause 6 agreed.

Clause 7: Further provisions about removal

Amendment 55

Moved by

[Baroness Hamwee]

55: Clause 7, page 9, line 36, at end insert “and,
(c) the Secretary of State has published guidance regarding what criteria will be used to determine the order in which individuals who the Secretary of State is required by section 2(1) to make arrangements for removal will be removed from the United Kingdom.”Member’s explanatory statement
This is a probing amendment regarding the process the Home Secretary will put in place to determine the order in which individuals will be removed from the UK once the duty to remove is in force.

[Baroness Hamwee (LD)]

My Lords, Clause 7 relates to further provisions about removal. I have three amendments in this group. Amendment 55—I apologise for the grammatical error in it—would require the Secretary of State to publish guidance about the criteria for the order in which individuals are to be removed. It is not likely to be a tidy process and, as we have been debating for two and a half days now, an awful lot of people will be involved.

Therefore, as much transparency as possible about the process is required. For instance, will decisions be taken on the basis of how long individuals have been detained compared with others, where they have been detained, the receiving country, a mixture of all of these, or none of them? On Monday we heard from the noble Lord, Lord Carlile of Berriew, about a woman who had been waiting for 10 years—sadly, not that unusual a situation. The people who will be subject to these provisions are left not knowing what is going to happen to them. The lack of certainty is, to my mind, a cruelty among many others. To know not just that the decision is unfavourable but when its implications are going to be felt in the form of removal, as distinct from detention, will be very relevant.

Amendment 55A probes the process of notifying the Secretary of State under Clause 7(3)(b) regarding a suspensive claim, that the individual P

“does not intend to make a suspensive claim”

and proposes that that can be made through an immigration officer. I assume that that is the case. After all, the Secretary of State does not deal personally with every single application. However, with regard to the reference to notification being given orally, I want to raise the problem in my mind that it is too easy to be misrepresented when you make an oral representation, or simply not heard. I hesitated about tabling an amendment here because, on the other hand, I do not want to disadvantage an asylum seeker by requiring notification in writing if that is a difficult thing to do. I assume that P’s representative can give the notification on P’s behalf, but I would be glad of that assurance and also to know who that representative can be. Would it have to be a legal representative or could it be somebody who was providing support through one of the many organisations that work in this sector?

Amendment 57A would leave out the term “or indicated” in Clause 7(8). That provides for directions to transport officers about removal in a ship or whatever other vehicle

“specified or indicated in the direction”.

What does “indicated” mean? Does it mean “a ship” or “a train”? I suppose the latter would be Eurostar or perhaps a train between Northern Ireland and the Irish Republic—I do not know. It seems—again referring back to the previous debate—that “indicated” is perhaps a rather loose term. I may be wrong—I will probably be told that it is used in other legislation—but I would be glad to hear from the Minister what we should understand by it. I beg to move Amendment 55.

[Lord German (LD)]

My Lords, I have Amendment 57 in this group, and also the clause stand part debate. I will address my Amendment 57 first, but there are serious matters in the clause as a whole which I will come back to in a moment.

Amendment 57 addresses the far-reaching and perhaps unrealistic legal obligations being placed on private actors and companies to effect removal. This includes the captain of a ship, the pilot of an aircraft, the train manager or the train driver being required to enforce removal of an individual by enforcing detention on the ship, aircraft or train, if required, to prevent disembarking before removal has been fulfilled—and also of course to do it the other way round, as these people are mandated to ensure that the person is taken by those means of transport to the country to which they are being deported.

Two things arise from this part of the clause. One is that it gives inordinate powers to the Secretary of State to requisition not just ships, boats, aeroplanes and whatever else but the services of those who run those means of transport to detain and restrain those who are being transported. I will address in a moment the criminalisation of those people in making them subject to this sort of regulation.

The Explanatory Memorandum says that the Government will procure those services by privately chartering planes or ships or whatever but, clearly, this part of the clause, as drafted, gives the power to the Government to requisition those services. The Explanatory Memorandum also says that the Government can requisition scheduled services—scheduled flights to Kigali, perhaps. There are no direct flights from the United Kingdom to Kigali, by the way, and the flights are all operated by airlines based mostly in the European Union. So the Secretary of State can intervene in scheduled flights and require that they take the asylum seeker to a destination.

The other problem is that clearly, there has been no consultation on this matter with those who are now going to be required by the Government to execute this role on their behalf. To emphasise that, I will read to the Committee the views of the UK Chamber of Shipping, the people whose vessels are likely to be requisitioned:

“We are greatly concerned about these clauses becoming law which could require the ship’s master and crew to detain passengers, something which they are not trained to do, at the direction of the Government. The clauses also seem to allow the Secretary of State to set the period for which a ship’s master is required to detain a person on board a vessel—this could potentially lead to a situation where a ship’s crew is stuck in port for an indeterminate amount of time having received an instruction to detain individuals who are then awaiting the outcome of various legal processes to determine their rights. We are concerned that this puts seafarers at much greater risk from positions of conflict and potential harm”.


That is from the chamber of shipping, which obviously has not been consulted. We have also received a letter from the RMT that makes the same points.

The issue here now is: why has this power been taken? The situation is very similar to that in the Nationality and Borders Bill, which, Members of the Committee will remember, would also have criminalised seafarers who perform humanitarian rescues of persons in distress at sea and bring them to the UK, but those provisions were dropped from that Bill because these people should not be criminalised in this manner.

My first question to the Minister is: if it was determined and agreed by Parliament that this sort of clause was not required for the Nationality and Borders Bill, what is different now? How are the circumstances different? Is it because there are many people—airline pilots or crew, perhaps—who have not been willing to deport people in the manner the Government propose? Secondly, is it because the Government are not intending to provide anyone to accompany these people on their journey but are expecting them to be dealt with entirely by the crews of existing means of transport?

It is beyond my ability to understand why this law is now being put in place when it was previously deleted from an Act that had some of the same intentions. It seems to me that this is an unworkable section of the Bill, particularly in respect of people’s understanding of how they are to be expected to carry out jobs for which they have received no training, in which they have no experience and which they may find morally repugnant.

17:45

The second issue relates to what happens in respect of legal aid or support. My noble friend Lady Hamwee raised this issue but I want to take it a step further in terms of the process when a person arrives in the United Kingdom. I will give one example and one generality. The first stage is to understand at what point the letter or instruction of inadmissibility—whatever format it will take—is given to the person concerned. Also, who is going to give it to them and in what languages will it be given? There is no point in people being told this in English when their first language has no connection with ours. This situation, people being given information of which they have no understanding, has been criticised before.

I would like to ask a question about a case. Take a young lady who has escaped from South Sudan out of fear and gone to Kenya. She then takes a flight from Kenya to the United Kingdom; there are such direct flights. According to Schedule 1, Kenya is not a place that is safe for women. If that is the purpose of the schedule and the Government say that it is not safe to send women to Kenya, then Kenya is not a safe country. Therefore, the third condition under Clause 2 does not apply because the person has not come from a safe country. Perhaps the Minister would like to explain when he will reverse this situation. He has the schedule in front of him; that obviously must make it work. On the question of when people get advice, would that young lady coming from South Sudan via Kenya directly to the United Kingdom be able to get immediate advice, as she will obviously be seeking asylum in this country?

The other issue we face is people who are inadmissible on the other side. They will also need some advice and support regarding whether they should make a substantive claim. The timescale we are given in this Bill is very short indeed: eight days. Does that eight-day period start from the date on which people are given their statement of inadmissibility to the country, or when they are given a notice of deportation and removal from this country? When does that period start and when will they be able to get that aid? At the moment, it is unclear from this legislation at what point they will be able to get assistance.

We have here a selection of cases to which we do not know the answers. It is not clear from the legislation before us what the answers are but, clearly, there are people who will need assistance and advice, whether regarding the language used or the quality of the notices provided to them. How that advice is to be provided and who is to provide it are important pieces of information, but the clear message I am asking the Minister to give us today is this: when will those people have access to the sort of assistance we need to provide to comply with the legislation? Also, will the eight-day rule be shortened if notice is given too late, the date of inadmissibility being some days after they arrive?

[Lord Davies of Brixton (Lab)]

My Lords, the following group, which I will lead on, deals specifically with the impact of this legislation on workers in the transport industry. I have one question on Clause 7(8) which places responsibilities on

“owners or agents of a ship, aircraft, train or vehicle”.

These responsibilities are onerous. Have the Government consulted the people involved and made an assessment of the impact? Will those issues be dealt with in a weighted impact assessment?

[Baroness Jones of Moulsecoomb (GP)]

My Lords, this Bill is about removing rights and making life as miserable as possible for some of the most vulnerable and desperate people in the world. I find it impossible to understand how we have ever come to this point. Part of this process is removing human rights with regard to access to the courts—removing the courts’ ability to intervene when the Government act unlawfully. How can that happen? How can this come to us in any sort of legislation? Detaining and deporting people without providing them with any legal advice, or even any information about how to obtain legal advice, all contribute to this denial of human rights.

I was in Belgium for a few days last week. I speak decent French and some German and there were times when I could not understand a word anyone was saying. The idea that we might not help people in a language they can understand and communicate in astonishes me.

We are in an absurd situation where murderers and paedophiles could be more kindly treated by the law than, for example, a desperate family who arrive in a small boat from across the channel.

Then there is the outrageous Clause 7. This is bonkers. When I first read it, I had to laugh—it sounds like something a two year-old might come up with. It says that the Secretary of State can commandeer

“any ship, aircraft, train or vehicle”.

So the border patrol—or whoever it is—can stuff people into somebody’s car and say, “Right, you are responsible for them. You get them out of the country”. It is astonishing. Who wrote this? How does this come from a Government whom we sort of hope might be able to tough it out for the next few months—actually I do not want them to tough it out; I want them to go. Presumably, this Government do want to tough it out, so why bring this sort of rubbish to this House? It is actually quite offensive.

In Clause 7, they are asking ordinary citizens—the British public—to act as border enforcement agents. I do not think any of us would want to do this, even the most rabid ERG member you could possibly think of. This is part of the problem with the Bill. It is not going to help the situation in any way at all. Is it designed to pander to the extreme right wing of the Government, so that they can say they are doing something and perhaps retain those votes? I have no idea. The thought processes are beyond understanding. Clause 7 is unbelievably bonkers.

It shows how this Government are trying to exploit Just Stop Oil, asylum seekers or people such as that to make the public think they are actually doing something about the problems these people are facing. I really hope that we defeat quite a lot of this Bill before it gets much further.

[Lord Bach (Lab)]

My Lords, what rights people have when they come into this country—unlawfully, the Government claim, although some of us would disagree—is surely an essential part of this Committee’s consideration of the Bill. I know the Minister is a member of the Bar and has practised in criminal courts and elsewhere, so he will understand instinctively how important the question of rights is for people who have just come into this country, often in a destitute state.

We know that later in Committee we will debate legal aid and the Lord Chancellor’s duties. Those are important matters to be considered then but I wonder, given the speeches that have been made on this group, whether he has something to say about the Government’s attitude towards the rights of people whom he or others may not like, but who do have rights when they arrive in this country. Do we just say that there are no such rights—no right to any advice or legal aid, if that is necessary, because they deserve what comes to them—or do we take the more sensible and British attitude that anybody who ends up on our shores and is in trouble should be entitled to some advice?

[Lord Balfe (Con)]

My Lords, broadly speaking, I support this Bill, but there are many things in it which give me cause for concern and we have now hit one of them. The noble Lord, Lord Davies, mentioned it—the extent to which the state can co-opt unwilling people to implement its legislation. Regarding those who happen to be the driver of a train or pilot of an aircraft that has on board what we are now going to determine is an illegal immigrant, how can we force such people to act as agents of the state in detaining them?

The noble Lord, Lord Davies, mentioned that this will come up in the next group but it is an important, fundamental point. I am not talking about the refugees but the many trade unionists who will be horrified at the thought of being co-opted as almost part of the police. This is not on. Before the Bill moves to the next stage, I hope the Government can come forward with some proposals which will exempt ordinary workers from becoming its policemen.

[Lord Paddick (LD)]

My Lords, the amendments in this group all seek clarification of various issues. My noble friend Lady Hamwee rightly asked what priority is to be given to removals under the Bill, bearing in mind that the uncertainty is very corrosive of people’s mental health. She asked how P will give notice to the Home Secretary and spoke about the dangers inherent in oral notice being given. She said that that could easily be regarded as giving notice that they do not intend to make a suspensive claim, and she spoke about the danger of language difficulties, misinterpretation and so forth.

My noble friend Lord German and other noble Lords raised the question of requiring private individuals to carry out enforced removals. Most, if not all, will not have been trained in or compensated for undertaking the risks associated with forcibly removing people from this country. He also asked a very important question about consultation. Who has been consulted: trade unions, to which the noble Lord, Lord Balfe, referred, or the commercial organisations that are going to be required to undertake this work? There are other uncertainties, as my noble friend Lord German set out. It would be most helpful if the Minister provided answers to these questions.

The noble Baroness, Lady Jones of Moulsecoomb, has a habit of saying what many of us are thinking, but we may not be prepared to stand up and use her exact words. What I would say about Clause 7 is that it smacks of desperation.

18:00

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group centres around Clause 7, as we have heard, and seeks clarification on procedures which outline the provisions about removal. There are several smaller amendments by the noble Baroness, Lady Hamwee, and the noble Lord, Lord German, on the details of removal. Probably the most important amendment is Amendment 55, in the name of the noble Baroness, which would ensure that the Government produce guidance on the criteria by which individuals will be prioritised for full removal.

In her very extensive introduction, the noble Baroness asked who P’s representative can be when going through this process. Should the representative be a lawyer, someone from an NGO or some other status of representative? If I might be allowed a short recollection, I sat in on an immigration tribunal at Hatton Cross as a member of the public. I was astonished that neither the applicant going through the immigration tribunal process, nor their representative, spoke English. That was the reality of the situation that I witnessed. I very much hope that, in the sorts of examples that we are talking about in this Bill, P will be properly informed about the processes that they are going through, that they know what their rights are and that they can make their decisions as appropriate.

Amendment 57, tabled by the noble Lord, Lord German, is about the requisition of services by private actors and companies. He explained his amendment very fully. It may be unfortunate that this overlaps a lot with group 3, as my noble friend Lord Davies has just said, but nevertheless that is where we are. My noble friend asked about representations and what consultation has been done with the trade union movement about who will be asked to play their part in working in these companies. I would be very interested to hear the Minister’s answer to my noble friend’s questions.

On the amendment in the name of my noble friend Lord Coaker and the noble Baroness, Lady Jones—I will not even attempt the rhetoric of the noble Baroness; it is just not my style—the point, nevertheless, is that the recipient needs to understand what is being said to them and the language must be appropriate. This is a common-sense amendment. It is a simple amendment. I hope that the Minister can indicate that some form of wording can be found in this Bill to ensure that P, who is the subject concerned, understands what is happening to them. We support the amendments in this group.

[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

My Lords, Clause 7 makes provision for a removal notice to be given to a person and specifies what information this must contain. Each notice must specify that the individual is to be removed under the duty, be clear on their destination and set out a claim period in which to make a factual suspensive claim or a serious harm suspensive claim. That is, of course, suspensive of removal.

The noble Baroness, Lady Hamwee, described her Amendment 55 as a probing amendment, seeking to elicit our intentions as to the order in which individuals will be removed from the UK under the duty to remove in Clause 2. The whole purpose of the Bill is to remove persons who satisfy the conditions as soon as practicable. On the day of commencement, we will be dealing with two separate cohorts. First, there will be those who enter the UK illegally on or after the commencement date. Putting unaccompanied children to one side, as we already have debated how they will be considered, our aim will be to process new arrivals as quickly as possible as they arrive. Clearly, the speed with which individuals are removed will depend on whether they consent to a voluntary departure or, if not, whether they make a suspensive claim. Secondly, as we have discussed, the Bill will have a retrospective effect and the duty to remove will apply to those who entered illegally on or after 7 March this year. Where, in the case of this cohort, any asylum or human rights claim has not been decided by the commencement date, we will commence removal action in accordance with the duty in Clause 2, in parallel with the enforcement action that is being taken against new arrivals.

I assure the Committee that the necessary planning is under way to support the effective and efficient implementation of the Bill, which will ensure that we have an integrated and robust end-to-end process from arrival through to removal. This will cover the use of detention, case-working operation, management of appeals and the logistics associated with the returns themselves. I agree with the noble Baroness that development of robust guidance and training will be a key component across all of this. However, while work on implementation is well under way, we should not get ahead of ourselves. First, we must get the Bill on to the statute book in a form that is operable. We cannot be legislating for a scheme that is so full of holes that it is unworkable.

Amendment 55A seeks to probe how the process will operate, should an individual indicate that they do not wish to make a suspensive claim. If an individual notifies the Secretary of State that they do not intend to make a suspensive claim, the person may be removed to the country or territory which they have been given notice of. As the noble Baroness suggests, such notification may be to an immigration officer or a Home Office official. Where it is given orally, it will be duly recorded. I hope that affords an answer to her point.

Amendment 56, tabled by the noble Lord, Lord Coaker, would set out in statute two additional requirements to the notice, which must be given to the person before they may be removed—that it is provided in a language which they understand and provides information on how to access legal advice. It would be prohibitively expensive to provide translations of decision notices in all possible languages and dialects up front, and there would be a time delay in doing this on an individual basis. It is therefore more efficient to work with interpreters. It is already our current policy to ensure, when serving notices in person, that the contents are explained to the individual in a language which they understand, using interpretation services where required. We also provide information on how to access legal services where relevant.

On the question of legal advice, I reassure the Committee and the noble Lord that, in giving this notice, we will ensure that we also provide information on how to access any legal advice which individuals are entitled to and on how to make a voluntary departure. We will discuss this further in relation to the legal aid provisions, which will come before the Committee in the next few days. Therefore, it is unnecessary to put these additional requirements into the statute.

Amendment 57, in the name of the noble Lord, Lord German, deals with the legal obligations that these provisions place on transport operators. The noble Lords, Lord Davies and Lord Paddick, the noble Baroness, Lady Jones, and my noble friend Lord Balfe raised the same point. This amendment, as the noble Lord, Lord Davies, pointed out, overlaps with his own group of amendments, which we are debating in the next group. I hope that the noble Lord, Lord German, will be content if I deal with the substance of his Amendment 57 when we reach Amendment 57B.

Amendment 57A seeks to test the drafting of Clause 7(8), where it refers to a vehicle being

“specified or indicated in the direction”.

A direction “specifying” a ship, train, aircraft or vehicle may refer to a particular ship et cetera scheduled to depart at a specified date and time, whereas a direction “indicating” a ship may be a more generic item, for example, specifically or simply referring to a flight to depart that day rather than to a particular flight. Moreover, I point out that the drafting here is drawn from and reflects long-established terminology used in Schedule 2 to the Immigration Act 1971.

I will deal briefly with Clause 9. It simply makes a number of consequential amendments to existing immigration legislation to ensure that it works smoothly. There is no contradiction alongside the new provisions for removal in the Bill.

To respond to the noble Lord, Lord German, persons served with a removal notice will have eight days to submit a suspensive claim beginning from the day that they were given such a notice. We will come on to Clause 54 in due course; as I have already said, it provides for free legal advice for those issued with a removal notice. To answer the noble Lord, Lord Bach, persons subject to the duty to remove will have access to advice.

[Lord German (LD)]

I was interested in two stages. The Minister has talked about when the notice of removal is issued. Presumably there is also a statement of inadmissibility when you have arrived, because it takes some time to prepare the document or whatever the detail is for a removal certificate or notice. Is there an earlier notice? If so, is that the place where people can seek advice?

[Lord Murray of Blidworth (Con)]

I do not have the answer to that at my fingertips but, if I may, I will revert to the noble Lord with it. I suspect that the availability of legal advice will be drawn to the attention of individuals at the earliest possible time, but I will check that point and come back to the noble Lord.

In conclusion, the noble Lord, Lord Coaker, made some valid points on which I will further reflect. I hope I have at least gone some way to respond to the probing amendment of the noble Baroness, Lady Hamwee. On that basis, I ask whether she is content to withdraw her Amendment 55.

[Baroness Hamwee (LD)]

My Lords, it is Committee stage and, as the whole Committee knows, that is what I will do.

On this amendment, the Minister said, possibly twice, that things will be done “as soon as practicable”, but we know that not very much is practicable. It sounds like a parallel, idealised—well, it is not ideal to me but it may be in the Government’s mind—universe where all is possible. On the previous group, my noble friend referred to being somewhere within the wizardry of Oz. I do not know who is which character, and perhaps it would be inappropriate to speculate. However, the point about uncertainty in the minds of the individuals concerned is serious, which is why I made it earlier.

I do not think the Minister answered my question on Amendment 55A about whether notification can be given by a representative of the individual and whether that has to be a legal representative or could be a support worker from an organisation in the sector. Is he able to respond to that now?

[Lord German (LD)]

I also asked a question to which the Minister did not reply, about a person escaping from South Sudan via Kenya. Kenya would be treated as an unsafe country because it is in Schedule 1. Could the Minister respond to that when he has a moment?

[Lord Murray of Blidworth (Con)]

I apologise for not answering the noble Baroness’s question. Yes, is the answer; representatives could be provided in that way.

To reply to the hypothetical situation that the noble Lord referred to about someone from South Sudan travelling via Kenya, it would depend on the facts of the specific case and whether the conditions were met. It is perhaps not directly relevant to the debate we are having on this amendment, but I am happy to consider that hypothetical in more detail and write to the noble Lord.

[Baroness Hamwee (LD)]

To be absolutely clear, is the Minister saying that notification can be given via any representative and that they do not have to be qualified in a particular way?

18:15

[Lord Murray of Blidworth (Con)]

That is certainly my understanding. If the situation is any different, I will let the noble Baroness know.

[Baroness Hamwee (LD)]

I think that is quite important, as it matters how these things work in practice. Having said that, and as I indicated, I beg leave to withdraw the amendment.

Amendment 55 withdrawn.

Amendments 55A to 57A not moved.

Amendment 57B

Moved by

[Lord Davies of Brixton]

57B: Clause 7, page 10, line 36, leave out subsections (12) and (13)
Member's explanatory statement
This probing amendment, along with that to Clause 9 at page 12 in the name of Lord Davies of Brixton, removes subsections that place responsibilities on a captain of a ship or aircraft, the train manager of a train or a driver of a vehicle that are in addition to those under the existing law.

[Lord Davies of Brixton (Lab)]

My Lords, those who have been present for the last group will inevitably experience déjà vu, for which I make no apology. The implications of this legislation for the people upon whom obligations are being placed is clearly an important aspect of the Bill. It is not about the principle, where our position has been made clear; it is about the inadequate thought and consideration that has gone into preparing this legislation.

These clauses are a form of conscription—compulsory enlistment for state service, typically but not necessarily into the Armed Forces. Requiring transport workers, going about their normal work, to undertake state service—additional responsibilities mandated by the Government—constitutes a form of conscription. I will not take this too far but, for seafarers, it is effectively a return of the press-gang.

As the Minister alluded to in his remarks on the previous group, for transport workers there are already provisions for this sort of activity in the immigration Acts. People get deported in accordance with the law when they have no right to remain in the country. That raises the question: if it is already happening, why are these additional powers required?

I would argue that there is a highly significant difference between the existing practice and that proposed in the Bill. There is no dispute about that difference. The front of the Bill states that the Minister is

“unable to make a statement that … the provisions of the … Bill are compatible with the Convention rights”.

That is the human rights convention. This makes an enormous difference when we come to the imposition of additional responsibilities on employees. It is clearly a matter of concern to transport workers that they will be required to undertake actions when the Government cannot provide an assurance that, in doing so, they are not impinging on an individual’s human rights.

It therefore behoves the Government to take extra care when preparing such legislation. It is perfectly clear that this care has not been taken. There is a total lack of any assessment of the consequences and a failure to undertake any meaningful consultation with those who will be directly affected by the legislation or even their employers. With these amendments, I am asking the Minister to take the opportunity to review the provisions in this part of the Bill that impact on individual workers before it returns on Report.

I turn to the amendments specifically. They would simply delete those provisions that are of serious concern to rail staff and seafarers—as expressed by their trade union, the RMT—and to employers across the transport industry, where I understand there has been little or no consultation about their practicalities.

Amendment 57B would amend Clause 7 by deleting subsections (12) and (13). Here we have the powers for the Home Secretary to require train “owners”, as the Bill puts it, to “make arrangements” to deport individuals who fall foul of the legislation. It gives immigration officers the power to instruct people employed as train guards, for example, to detain and even restrain someone the Home Secretary is seeking to remove from the UK on passenger rail services. In effect, guards on passenger rail services will be turned into prison guards, acting under the direction of the Home Secretary and not that of their employer.

It is worth reminding the Committee that transport workers are routinely advised not to put themselves in situations of conflict when performing their contractual duties. They signed up to provide a transport service, not to act as untrained and inexperienced prison guards. This approach of lack of confrontation was uppermost in people’s minds around the enforcement of face mask wearing and other aspects of the Government’s Covid-19 response. Why is this situation, which is more extreme, any different? I understand that the RMT has tried to contact, and spoken to, transport Ministers and employers in the industry to seek their support in opposing these provisions.

I turn to seafarers. The captain of a ship will also be subject to these provisions. In practice, that would mean immigration officers directing the ship’s captain, who would then be obliged to instruct the ship’s crew to detain and even restrain people, subject to the Bill’s provision.

When the Immigration Act 1971 and other legislation to which the Minister has referred already contain significant powers to control migration, why are these additional powers required?

Amendment 58A would delete Clause 9(1) and (2). These provisions add rail employees to the list of transport workers subject to fines—criminal penalties—of up to £5,000 under Section 27 of the Immigration Act 1971, in relation to the removal process. This rush to legislate has been undertaken with scant regard to, and certainly no consultation with, workers on their responsibilities, even when they could be prosecuted if someone being transported in accordance with the instructions of the Secretary of State were to “disembark”, as the legislation puts it, or were not removed from the UK. In effect the Government are threatening transport workers, particularly rail and shipping staff and their employers, with criminal sanctions if they fail to impose custodial conditions on people submitting a claim for asylum in the UK. Once again, the Government do not appear to have undertaken any impact assessment of these proposals, particularly what they mean for individuals.

Amendment 71B would delete part of Clause 11(1). There are already significant powers in the Immigration Acts for an immigration officer to instruct the captain of a ship or aircraft to detain a person being removed from the UK if they have not been granted leave to remain or have attempted to enter the UK illegally on a ship or aircraft. But Clause 11(1) significantly amends paragraph 16 of Schedule 2 to the Immigration Act 1971.

The effect of this provision is that the Secretary of State, rather than the courts, will determine what is a reasonable period to detain an individual for, for the specific statutory purpose. If the Secretary of State does not consider that the examination, decision, removal or directions will be carried out, made or given within a reasonable period, the person may be detained for a further period that is, in the opinion of the Secretary of State, reasonably necessary to enable arrangements to be made for release.

The concern is that the Bill appears to give the Home Secretary much broader powers to require the detention of people on ships and aircraft for long periods of time. This is likely to mainly affect services chartered by the Home Office or the Home Secretary, but clarification is needed on the impact on the ships’ crews, who will potentially be stuck in port for an indeterminate period of time under the instruction of the Home Secretary.

As with the concerns I have raised over the contents of Clauses 7 and 9, the provisions in Clause 11(1) put seafarers and other transport workers in positions of conflict and potential harm at the instruction of the Secretary of State.

Given these concerns, I press the Minister to answer the following questions. First, will transport workers be prosecuted if they do not detain asylum seekers in line with the provisions of the Bill—actions clearly outside their contract of employment?

Secondly, what impact assessment have the Government conducted of these amendments, which bring transport workers and their employers into the scope of the legislation with the threat of criminal sanctions? If they have made an assessment, will they reveal it?

Thirdly, what consultation have the Government conducted with employers across the transport industry regarding these powers? I asked a question in relation to the previous group. I would have pressed the Minister at the time but, since I have this second bite at the cherry, I raise it now: what consultation has taken place? If there has been none, will they swiftly organise some? Will they include the results of such discussion in the fondly awaited impact assessment?

Fourthly, what discussions have the Government had with the devolved Administrations in Wales and Scotland over the effect of these requirements on Transport for Wales, ScotRail and cross-border rail operations?

[Lord Woodley (Lab)]

My Lords, as we can see, there has been an inevitable crossover between this group of amendments and the previous ones, as the noble Lords, Lord German and Lord Balfe, mentioned. I rise in support of this last group of amendments put forward by my noble friend Lord Davies.

For workers, there can be no doubt: it is somewhat disgraceful that Ministers are seeking to make transport workers responsible for detaining and even restraining asylum seekers. The TUC says that this idea shows “total disregard” for these workers’ ethical views and legal obligations. As has been mentioned, the RMT has put this in even starker terms, as did my noble friend Lord Davies a few seconds ago: these proposals will turn train guards into prison guards. Think about those words for a moment; it cannot possibly be right.

Clause 7 risks putting transport workers in situations of conflict, while Clause 9 increases their exposure to criminal sanctions and drags train managers and others into the removal process. This is surely completely unacceptable and unnecessary. The legislation is vindictive and inhumane. It seeks to exploit boat crossings in the channel to stoke resentment against refugees and migrants seeking asylum in this country.

These amendments are probing in nature and designed to draw out the Government’s reasoning behind these appalling proposals. They would protect transport workers from the terrible burden that Ministers seek to place upon them.

18:30

By the way, there is relevant recent history here that I think we should take on board. It was mentioned during the pandemic, for example, that unions worked closely with Ministers to ensure that transport workers did not have a legal responsibility to enforce Covid-19 measures, as my noble friend Lord Davies explained. It was accepted that they should never be placed in situations of potential conflict.

Last year’s Nationality and Borders Bill threatened seafarers with life imprisonment for unknowingly facilitating asylum; but again, after discussions with unions, the Government withdrew this proposal, which could have criminalised seafarers simply for following international maritime law. I therefore ask the Minister, what has changed now? How can it be right or even legal that matters like these have changed? How can we unilaterally and fundamentally change the terms and conditions of transport workers like this, exposing them to even more danger? The Minister must know that transport workers are advised not to put themselves in situations of conflict when performing their normal duties, so why is this any different? Why does it need to be any different?

I do not want to keep repeating the comments of my noble friend Lord Davies, but what impact assessments have the Government made of these proposals? Will transport workers be prosecuted? These are really important questions that need to be answered, especially when, as has been mentioned, the employers themselves, who are obviously at the heart of all this, were not consulted and do not support the proposals. I look forward to the Minister’s response and hope he will make sure that workers are not held responsible for carrying out these outrageous proposals.

[Lord Balfe (Con)]

My Lords, I draw attention to my entry in the register. As noble Lords will know, I frequently get up to speak on the rights of trade unionists. I am also president of a trade union affiliated to the TUC.

The purpose of this discussion is to encourage the Minister to go away and, we hope, say, “Well, they made some good points there. We had better bring forward some amendments. We ought to change same of the provisions of this Bill because it really doesn’t work.” Hence, I am speaking in support of the amendments put forward by the noble Lord, Lord Davies.

In Amendment 57B, the noble Lord is seeking to delete the phrase

“the captain of the ship or aircraft, the train manager of the train or the driver of the vehicle must"—

not “can”, “should” or “might consider”, but “must”—

“if so required by an immigration officer or the Secretary of State prevent P from disembarking”.

Immigration officers are also in trade unions. They have a very difficult life. Who is going to decide what they actually order the captain of the aircraft to do? Anyway, if the aircraft is up in the sky and it is suddenly discovered that someone is on board who should not be, what is the captain supposed to do? The captain of the aircraft has two principal jobs: to bring the passengers safely to the destination, and to do the same for the plane. They are not prison warders.

In many cases, of course, if this happened mid-air, they would not have realised the situation when they took off. Those of us who have been around a long, long time and can remember the hostage crises of many years ago will know that the situation became apparent only when aircraft were actually in the air. I am not asking the Minister, “will they be prosecuted?” because the Bill says that they will. I want to know under what circumstances it is envisaged that prosecution will be brought, and by whom it will be brought. Will it be the DPP, the department or the Minister? What will be the aim of the prosecution?

Amendment 58A would delete, amongst other things, the phrase

“knowingly permits a person to disembark in the United Kingdom”.

What is someone in that situation supposed to do? If a train comes into a station, it is very difficult to stop people getting off it. Noble Lords who have travelled to Brussels will be well aware of the number of times it is announced over the Tannoy that “You must not disembark at this station”. If someone does disembark, however, has the driver knowingly permitted them to disembark simply because they have gone into a station? Should they have stopped in the middle of the countryside? I ask the Minister to look at whether there should be an indemnity for transport workers, so that these provisions are not used to prosecute them. If they are, why should any pilot take the risk of flying an aircraft that might have an asylum seeker on it? Rostering is voluntary: you do not queue up and say, “you go there”. That is where the weakness lies—I diverge slightly—in the minimum strikes legislation. You cannot order people to do things, not in a free society; and that is where we live.

I ask the Minister to talk to the transport unions and to his own department about what it is trying to do with this and whether it will actually work. What concerns me about this Bill, as with the minimum strikes legislation, is that we are progressing rapidly towards a fairyland where pass legislation that just will not work. It is not a good thing to do, because it does not breed respect for legislation. I, and many people in Britain, want illegal immigration to stop. There is a general feeling out there in the country, particularly among the trade union members that I deal with, that you should not be able to cheat the system. But you have to make this Bill work to achieve that, rather than just achieving headlines for the Daily Mail, and for us all to look smart. The challenge is to make this work, not to make it look good.

[Baroness Hoey (Non-Afl)]

My Lords, I had not intended to speak on this provision, because when I read the Bill and saw it, I genuinely thought that it must have been a drafting error on the part of civil servants that Ministers had not noticed. Having listened to the noble Lord, Lord Davies, move his amendment, and to the other noble Lords who have spoken, it seems very sensible to me that this be taken back by the Government before Report. I am amazed that there was no consultation with the trade unions on this issue, which really does affect their members’ livelihoods. If this went through, I can imagine how workers on planes, ships and other forms of transport would react, knowing that it could be used against them.

It right that this Chamber address this issue, being an advisory, revising Chamber that gets things changed that we think are obviously wrong. In addition to what has already been said about consultation, why has this not been discussed properly? As the noble Lord, Lord Balfe, has said, many trade union members believe that the way we deal with illegal immigration has to change, but this is not the way to do it. This bit of the Bill must be taken out. The Minister should accept that there will not be support for it in this House, and that the other place has not, perhaps, thought about this in a sensible way.

[Baroness Chakrabarti (Lab)]

My Lords, I thank my noble friend Lord Davies of Brixton for tabling these amendments, which are supported by the trade union movement and by other noble Lords.

I will put my cards on the table: my personal position is that coercive powers of detention should be in the hands of the state, for a number of reasons. I think Ministers should be directly responsible for the use of coercive power in our democratic society, and those powers should be exercised by properly trained people who enter into a profession to exercise powers such as that. However, that is not everyone’s position. I know that reasonable people, including friends of mine with whom I disagree and some on the Benches opposite, believe, for example, in private prisons. Those are circumstances where there is a contract that a private provider enters into to provide services for detention, coercion and so on. I have problems with that; I will not bore the Committee with my various concerns about it, but I believe that there is an entire Wikipedia page devoted to G4S scandals. I am thinking also of Brook House detention centre and the various people who have died in the context of forced removal from the country. I have concerns about the use of private contractors to exercise some of the most coercive powers of the democratic state.

However, the problem that has been identified by my noble friend Lord Davies and others is even more serious than that, because these are not private guards who have been employed by AN Other private security company—although I am concerned about that, and the scandals speak for themselves—but people who are transport workers. They are used to giving service to the public, which is a very different job with a very different understanding, different training and, as the noble Lord, Lord Balfe, pointed out, different preoccupations and priorities from the use of coercive force.

On mixed flights, holidaymakers sit alongside deportees. To be fair, that is already a problem; under the regime that we have now, these problems have arisen for some time, but the Bill makes the problem worse. We also have to be realistic that, in the context of the challenges we will face on this planet in the years to come, more and more desperate people will come. The idea of having mixed flights, with transport workers now being responsible for a policy of transportation in addition to normal service provision with the priorities of customer safety, is a total nonsense. If the Government want to pursue the sorts of policy that we are seeing in this legislation, with controversy, coercion and desperate people who may want to fling themselves off the train, the ship or the plane, that is really not appropriate for transport workers. We are now getting into a transportation policy of coercive control and removal, and that really ought to be done by servants of the state, agents of the state, who have been employed for that purpose.

It is not just for the sake of their consciences or for the safety and security of the desperate people themselves—or indeed the terrible people. We keep calling them “illegal migrants” but that is a bone of contention, because of course these people are being removed without consideration of their asylum claims, so we do not know whether they are illegal or not. However, whether they are illegal or are genuine refugees, some of these people will be desperate and will resort to desperate means to escape removal, and the lovely people who I travel with on the trains, when I can, should not be charged with that task; it should be people who are genuine volunteers who have been properly trained, and they should be directly responsible to Ministers when things go wrong, which I am afraid they sometimes will. So the amendments are very well put and I urge the Government to think again.

The Minister will rightly say that this is not novel. I do not want to pretend that it is totally novel to give directions to conventional transport providers and to contract out aspects of immigration control; bit by bit, that has been happening for decades, and it has simply been turbocharged by this policy. However, it is not safe or ethical, and nothing good will come of it.

18:45

[Lord Berkeley of Knighton (CB)]

My Lords, my point, which I hope is a helpful one, follows on from what the noble Baroness has said but also from what the Minister said about the need for interpreters; he was talking about Clause 55, but I can see the same thing happening here.

A few months ago in your Lordships’ House we discussed the whole nature of the qualification of interpreters. We came to a conclusion that, sadly, this was often wanting. Justice and democracy are served only if people who have to make a case for themselves are understood, and if they are talking to someone who can put their case cogently. My question to the Minister is: when he talks about interpreters, is he talking about people who will be adequately qualified?

[Lord Paddick (LD)]

My Lords, as other noble Lords have said, there is an overlap between the last group of amendments and this one. I am grateful to the noble Lord, Lord Davies of Brixton, for setting out specifically what the issues are here, particularly the additional complications of the potential incompatibility of the Bill with the European Convention on Human Rights, and therefore workers being asked to act in contravention of people’s human rights. There have been instances where whole aeroplanes were chartered and immigration officers have accompanied people who were being removed, but here we are talking potentially about removals in numbers that we have never seen before—if the Government are to be believed.

The Government seem to be asking transport workers, who have not been trained in self-defence, to safely detain people or safely restrain them if they resist. They are not paid to do that sort of work or cope with those sorts of risks. What about employer liability insurance? What happens if a fight develops between a transport worker and one of the people being deported, and the person being deported ends up suing the transport worker? What about indemnity? What indemnity are the Government going to provide to these transport workers, who are effectively being used as agents of the state?

Again, what consultation has taken place with trade unions and transport operators around the feasibility of the proposals contained in the Bill? As the noble Lord, Lord Davies of Brixton, pointed out, and as my noble friend Lord German pointed out in the last group, there was the potential for seafarers to be prosecuted under the Nationality and Borders Bill if they attempted to rescue people from drowning in the English Channel, if they believed that they were illegal migrants. Now we are talking about potentially prosecuting transport workers who fail to act as agents of the state in detaining people for removal. How can that possibly be part of what a transport worker signs up for when they take on their role?

As my noble friend Lord German said in the last group, the UK Chamber of Shipping has written to noble Lords. The overall problem with this measure can be summed up when it says:

“We are greatly concerned about these clauses becoming law which could require the ship’s master and crew to detain passengers, something which they are not trained to do, at the direction of the Government”.


As I said on the last group, this whole clause seems to be an act of desperation and something that the Government really need to think about again.

[Lord Hacking (Lab)]

My Lords, with apologies to the noble Lord, Lord Paddick, I will intervene briefly. I very much want to hear what is said by my noble friend Lord Coaker, who will be speaking next. I have only one very simple observation to make. Although I have attended most of the debates on this Bill I have not been able to get into the detail of this, and I certainly did not get into the detail of this problem until my noble friends Lord Davies of Brixton and Lady Chakrabarti, and the noble Lord, Lord Balfe, spoke. It is a very simple proposition: these provisions are just unworkable.

[Lord Coaker (Lab)]

My Lords, I start by thanking my noble friend Lord Davies for Amendments 57B and 58A, which I think are very worthy and have signed. They encapsulate the points that I and many noble Lords have made throughout the passage of the Bill so far, and no doubt will in the future, that it is not only issues of principle that concern many of us with respect to this but that many of the provisions are simply unworkable and raise serious questions.

If noble Lords have not done so already, it is worth taking up the point of the noble Lord, Lord Balfe, and reading Clause 7(12)(a) and (b), which is at the heart of this group of amendments. As the noble Lord, Lord Balfe, pointed out, the captain of a ship or aircraft, the manager of a train or the driver of a vehicle must conform to the directions of an immigration officer to detain an individual and stop them escaping. That is not only if it is reasonable to do so or if it is something you could understand them doing; they must do it—they have no choice. I do not know about some of the lorry drivers the Minister knows, but good luck with that. The serious point was made that the language barrier will be enormous, or at least significant, in many of those instances.

I have some specific questions, and they repeat and reinforce some of the points that have been made. Can the Minister explain how the captain of a ship, a lorry driver or a train manager—that is who we are talking about here—will detain these people? If the immigration officer requires them to detain someone, how are they meant to do that? As my noble friend Lady Chakrabarti and the noble Lord, Lord Paddick, ably put it, given that they are not warranted officers and do not have the powers of police officers or other individuals, what force can they use? “Excuse me, please do not get out of my lorry. I have been required by the immigration officers to stop you”—I am not sure that that would work, but let us say it does. But if it does not, and the person tries to get out, what can they do to stop them? I hope the Minister can explain that. The problem is that if they do not stop them, they can be prosecuted. One of the noble Lords who contributed said that it is not that they might be prosecuted but that they will be prosecuted if they do not conform. What happens if they try but the person escapes? Who decides whether they have tried enough—that they have gone to a sufficient extent to prevent the person leaving? Knowing the practicalities of this would be useful.

Clause 7 says “vehicle”, which means a lorry, but does it also mean a car or a campervan? If you are a driver of a car and somebody is in the back, do you have to stop them getting out on the direction of an immigration officer? Is it the same rules for children as for adults? The Minister will say I am nitpicking, but we are in Committee and that is the whole point of Committee. Whether for a lorry driver, train manager or car driver, we need to know whether the Government assume that you can do the same with children and what force is applicable with respect to children vis-à-vis an adult. There are, as I say, a significant number of questions.

The last point I want to make, which was raised by my noble friend Lord Davies, is about the detention period for which someone can force a person to stay in their train, on their aircraft or in their car. What is the reasonable length of time? How does it work? I think the Bill may say a few hours but what happens when that expires? The Secretary of State is then required to say that it can be extended. How does that work? How is the driver informed about that? On the practicalities, the noble Lord, Lord Balfe, made a really interesting point, which again sounds like nitpicking. If you are a train driver or a lorry driver, and you arrive somewhere and are required to stay there for 12 hours or 24 hours, what rights do you have? Are you required to stay there, or can you pass it on to somebody else to take over from you and carry on with that period of detention?

My noble friend Lord Davies and the unions, and others who have supported them, have raised a series of important questions about why the detail is so important and why many of us have questions about not only the principles of the Bill but some of the proposals in it and the workability of them.

[Lord Murray of Blidworth (Con)]

My Lords, Clause 7 includes requirements for various persons, such as owners and agents of a ship, aircraft, train or vehicle, the captain of a ship or aircraft, the train manager or the driver of a vehicle, to comply with directions for an individual’s removal from the UK. The noble Lord, Lord Davies of Brixton, has explained in his Amendments 57B, 58A and 71B that he seeks to probe the legal obligations these provisions place on transport operators.

If I may, I will address the point from the noble Lord, Lord Coaker, about whether this relates to private vehicles. The answer is that it is related to scheduled or chartered services, not individual cars or campervans.

I would like to make it absolutely clear that the Government are not making transport workers or operators undertake immigration functions. Clearly, I am in agreement with much of what we have heard during the debate on this group. That is not something we would want to do. Nor are the provisions in Clause 7 about commandeering vessels or vehicles, as was suggested in the debate on the last group; we can and do make arrangements for removal by scheduled services or chartered services. Nor are these new requirements; they reflect provisions that are already in place in Schedule 2 to the Immigration Act 1971 for arranging the removal of persons not subject to the new duty in the Bill but otherwise liable to removal from the UK.

Having placed a person on board a ship, aircraft, train or vehicle for their removal from the UK, it is only reasonable that the Secretary of State or an immigration officer may require the relevant captain, manager or driver to prevent the person disembarking while that vehicle, ship, aircraft or train is still in the UK, and effectively keep that person in their custody until they have reached the destination. Clause 9(2), which is the subject of Amendment 58A, then applies the relevant existing criminal offences in Section 27 of the Immigration Act 1971—which already apply to carriers who fail to act under instructions to remove a person under that Act—to instructions to remove a person under the powers set out in this Bill.

19:00

As I have indicated, the provisions in Clauses 7 and 9 are entirely in keeping with the long-standing, pre-existing provisions in the 1971 Act. I would add that of course we work with relevant transport providers to ensure that arrangements made for a person’s removal from the UK are effective. These include providing risk assessments and relevant escorts where necessary.

Clause 11, which is the subject of Amendment 71B, does not in fact deal with the responsibilities on crew members as such. Clause 11(1) inserts a new paragraph 17A into Schedule 2 to the Immigration Act. This provides that a person liable to detention under paragraph 16 of that schedule may be detained for such period as, in the opinion of the Secretary of State, is reasonably necessary to enable the examination, decision, removal or directions to be carried out, made or given. The provisions that Amendment 71B seeks to remove clarify that the reasonable detention period includes any detention on board a ship or aircraft for the purposes of removing them either from the ship or aircraft or removing them back to another country, as the case may be. The Committee will, of course, return to Clause 11 very shortly.

These provisions simply carry across provisions that have already been on the statute book for over 50 years and been operated without difficulty. In answer to the noble Lords, Lord Hacking and Lord Coaker, I suggest that these are workable provisions. They have been so without adverse comment for 50 years. I hope therefore that I have been able to provide some reassurance to the noble Lord, Lord Davies—

[Lord German (LD)]

We are discussing the issues raised in the previous group and I accept that the Minister wants to talk about them now. I also accept that there are provisions in existing law. Perhaps the Minister can tell us why, therefore, the Government need to put these provisions into the Bill if there is already legislation that stands by that. The difference that I can perceive is the requisitioning of services, particularly transport services. That may be slightly different from what we had before. If the Minister cannot say exactly why these provisions are needed, because they are already in existing powers, there is no point putting them into the Bill.

[Lord Murray of Blidworth (Con)]

The powers in Schedule 2 to the Immigration Act will continue to apply to those being removed who are not subject to the new duty in the Bill but are otherwise liable to removal from the UK. The powers in the Bill will relate to those who fall within the cohort in Clause 2. They provide clarity and certainty by being present in the Bill in this context. It is also clearly right that the 1971 Act powers need to be applied to the Bill, so that is the purpose for their inclusion. I hope that answers the noble Lord’s question.

[Baroness Chakrabarti (Lab)]

I hope I conceded earlier that we know that there have been directions issued to captains and others since the 1971 Act; that is not in contention. My concern, given the greater controversy of a forced duty to remove people who have not even had a refugee claim considered, and given the larger numbers that the Government clearly anticipate in relation to this policy, is about some of the detail. The Minister said that we need greater clarity, but that greater clarity will bring greater concern. I personally do not remember all this deeming of legal custody and the criminalisation of transport workers, certainly not in the original 1971 Act. Maybe more of that has happened over the years.

I ask the Minister to go back to the issues of policy and principle, and not just to rely on the precedent of the creep of legislation forcing these duties on transport workers. Whether that creep has happened or not—I can see that it has—some of us are really concerned about where it has gone. He said that this has passed without comment or controversy but that is not the case, is it? Every so often, somebody dies while being removed because of the coercion and force that is necessarily involved. If the people using that force are not prison guards, soldiers or police officers, but just common or garden transport workers, there is a real concern and controversy. I would be very grateful if the Minister would address that as a matter of principle.

[Lord Murray of Blidworth (Con)]

I am afraid I do not agree with the noble Baroness that there is a substantive difference in the fact that the people being removed under the Bill have had their asylum claims rendered inadmissible, because under the present law categories of people have inadmissible asylum claims and they too are subject to removal. They have been subject to the powers in the pre-existing legislation, so I am afraid I do not accept the premise of her intervention.

I should add that we regularly read of instances where there is disorder on an aircraft or instances where a pilot is obliged to land somewhere; then the doors are opened and the police remove a person from the aircraft. That detention can be as simple as keeping the doors closed until the agents of the law arrive to remove the necessary people, and similarly on trains with electric doors. The effecting of the detention is not going to be overly burdensome on the operators as a result of these provisions.

[Lord Davies of Brixton (Lab)]

My Lords, I am disappointed with the Minister’s response. I acknowledged that there were existing provisions but that the situation in which we now find ourselves is qualitatively different. It was a grave disappointment that there had not been sufficient consultation with those directly affected. There is no doubt that transport workers and transport providers have significant concerns. Even if the Minister is right in what he says, it would clearly have been appropriate to have some discussions, if only to allay those concerns. I am disappointed that he has not given a commitment to give further thought on this area.

I do not know whether it is by chance, but we happen to have the noble Baroness, Lady Vere, who is the Transport Minister, with us now. Perhaps some discussions could be facilitated, because I know that she has had representations on this issue. I will look carefully at what the noble Lord, Lord Murray, has said and consider whether this is an issue to which we will need to return. I withdraw my amendment.

Amendment 57B withdrawn.

Clause 7 agreed.

Clause 8: Support where asylum claim inadmissible

Amendment 57C

Moved by

[Baroness Lister of Burtersett]

57C: Clause 8, page 11, line 18, leave out “and (3)” and insert “, (3) and (3A).”
Member's explanatory statement
This amendment, and another in the name of Baroness Lister, would amend the Immigration and Asylum Act 1999 to create a right of appeal against a decision to refuse an application for support under section 95A of the Act, or to stop support under that same section.

[Baroness Lister of Burtersett (Lab)]

My Lords, in moving Amendment 57C, I will also speak to Amendments 57D to 57G. I am grateful to the right reverend Prelate the Bishop of Durham and the noble Baroness, Lady Hamwee, for their support. These are very much probing amendments and I apologise that I did not make that clear in their explanatory statements. They are focused on the financial and accommodation support available to those deemed inadmissible but still resident in the UK, and on associated appeal rights.

I am grateful to the Refugee Council for its help with these amendments. Because they refer to existing legislation, the amendments are quite complex and, given their probing nature, I do not therefore intend to go into the details of what they would achieve. I am sure that will be a great relief to those who want to get to their dinner. Instead, I will explain the context of the amendments and then set out a list of questions for the Minister.

Despite the Government’s intention to deport large numbers of asylum seekers swiftly, the consensus outside government is that, in the absence of adequate third-country agreements, many of those deemed inadmissible will also be unmovable in reality as they cannot be returned to their country of origin, given that their asylum claims have not been assessed. This, according to the very helpful joint briefing we received from a large number of civil society organisations,

“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”.

The Refugee Council, Refugee Action, Praxis and the No Accommodation Network describe it as “permanent purgatory”.

In the continued absence of the official impact assessment, the Refugee Council’s assessment estimates that by the end of the three years following the provisions coming into effect, between 161,000 and nearly 192,700 people will be living in this purgatory. They will not have the right to work—the subject of a later amendment —and will not be eligible for mainstream benefits or housing, and thus will be at great risk of exploitation and destitution.

Refugees and people seeking asylum in the UK are already at serious risk of exploitation. British Red Cross and UNHCR research found that people refused asylum face a particular risk of exploitation, as they have few support options. The research found evidence of people experiencing destitution, homelessness and various forms of exploitation, including sexual exploitation. The BRC warns that the number of people experiencing destitution and exploitation will increase if the Bill is implemented and if people deemed inadmissible to the UK asylum system are denied access to support.

According to the joint civil society briefing:

“The physical and mental health implications of this would be unprecedented”.


Health organisations have repeated this warning and the Royal College of Psychiatrists has underlined the serious harm to mental health that living in immigration limbo is likely to cause. The BRC reports, on the basis of its experience with those already deemed inadmissible, that living in limbo without adequate support has devastating impacts on people’s mental and physical health.

It is therefore crucial that we are clear as to what financial and accommodation support will be available to those living in limbo. Key here is what access they will have to Section 4, Section 95 or Section 98 support under the Immigration and Asylum Act 1999. I have a number of questions for the Minister that refugee organisations have not been able to get the answers to.

First, Section 4 of the 1999 Act is mostly used for supporting those who are destitute, having had their asylum claim refused, and where there is a barrier to them returning home. It can be provided only for accommodation and financial support combined, not for financial support alone. The guidance and regulations mostly reflect these circumstances. Is the Minister confident that the existing regulations for Section 4 will cover the circumstances of someone waiting for removal having had their asylum claim deemed inadmissible under the Bill, given that, for support purposes, they will be treated as failed asylum seekers?

Secondly, looking at the ASF1 that people need to fill in to apply for Section 4 support, it is not clear how someone would use it to apply for support when their claim has been deemed inadmissible. Given that the Bill could be in force this summer if the Prime Minister gets his wish, what plans does the Home Office have for updating the form?

Thirdly, as a result of the Bill it is likely that many more people will be reliant on Section 4 for accommodation and financial support. Currently, most asylum seekers are supported under Section 95, which is available to those awaiting a decision on their claim and facing destitution. Section 98 allows people who would otherwise be destitute to be supported pending a decision on their eligibility for Section 95 support. I said that this was a bit complicated, and I apologise. The equivalent does not exist for Section 4, which will become the main means of support. Are Ministers preparing to use the regulation-making power in Section 4 to create such a scheme? If not, what is proposed?

Finally, can the Minister clarify whether they intend to use the provision within the Immigration Act 2016 to repeal Section 4 and introduce a new Section 95A as a replacement? If the Home Office intends to make that change, when does it intend to implement the 2016 Act changes, and will there be consultation on the relevant regulations and guidance that will need to be put in place? Unlike Section 4 and Section 95, Section 95A decisions would not attract a right to appeal. Given that circumstances are now very different from when Parliament passed the 2016 Act and that it will be a completely untested system, will the Home Office accept an amendment that would create the ability to appeal a refusal or discontinuation of support?

19:15

I apologise for the rather technical nature of these questions, but they are really important given the large numbers who are likely to be stuck in limbo and facing possible destitution. Refugee organisations and local authorities need to understand now what the situation will be. I accept that the Minister might not be able to answer all my questions now, but I ask for an assurance that he will write to the Committee with the answers before Report.

In conclusion, I quote a torture survivor and refused asylum-seeking woman who has previously been supported by Freedom from Torture and is a member of the anti-torture network Survivors Speak OUT. She became appeal-rights exhausted, at which point she experienced homelessness. What she says underlines what is at stake in the answers to the questions I have posed:

“I lost my house, my security and my sense of safety. I moved between different people’s houses, only being able to stay a few days at a time. I have walked the streets looking for somewhere to sleep, sometimes I was offered food by a shelter, but there was never a bed available. I have no words to describe how this experience has made me feel. I have hated myself for how vulnerable I have become, and the sadness is overwhelming. I have felt many times that my life would come to an end. The thought that the UK government would make laws that could expose more people to my experience is unimaginably cruel. Women, children, and torture survivors will suffer violence and pain on the streets, and it will be this government that is responsible for that avoidable pain”.

We must do all we can to prevent such pain.

[The Lord Bishop of Durham]

My Lords, I refer to the register of interests and my involvement with the RAMP project and Reset.

I thank the noble Baroness, Lady Lister, for tabling Amendments 57C to 57G to provide us with the opportunity to discuss issues relating to the level of support that will be provided for those declared inadmissible but who are unable to be removed from the country. I too am highly grateful to the Refugee Council for supporting us to probe this area of policy well, especially in the absence of an impact assessment.

Before I outline questions for the Minister, it is important to note that those deemed inadmissible will include not just those whose asylum cases would likely have been found valid but individuals who would not have qualified. In the absence of any return deals, this could leave the Government in the absurd position of needing to support at public expense those who could be appropriately returned to their own country.

The Government will also need to support those excluded from the asylum system, who of course could support themselves and their families through employment after gaining refugee status. Let us remember again that more than three-quarters of asylum cases assessed last year were found to be valid. Support will need to be indefinitely provided to these families, and every year this group will increase in number. I hope that these amendments, while raising technical issues, will also help us to understand the rationale behind this and the costs associated with this approach.

My noble friend excellently laid out the grave mental health impacts of being confined to a life of permanent precarity and inescapable destitution. I remarked at Second Reading that this amounts to the continuation of detention simply without walls. It is therefore vital to understand what level of financial and accommodation support will be provided to those living in this state-sanctioned situation. I will try to add complementary questions to those already posed, but there will inevitably be some overlap.

Currently, far more people are supported under Section 95 of the Immigration and Asylum Act 1999 than under Section 4. According to Home Office statistics, in the first quarter of this year, there were 11,662 applications for Section 95 support, compared with 642 under Section 4. The Bill before us will change that, as those people whose claims are declared inadmissible will, in most cases, not be eligible for Section 95 support and instead will need to rely on Section 4 to avoid destitution.

I will ask the Minister some questions. First, how will someone who is, in effect, banned from claiming asylum be able to apply for Section 4 support? It is not clear, as the current guidance for Section 4 states that those deemed inadmissible cannot apply on the grounds that there is no viable route of return to their own country as they are due to be removed to a third country. Individuals will also not be able to judicially review the inadmissibility decision and cannot demonstrate that they are taking reasonable steps to leave the UK, given that their country of origin may be unsafe, and they will not have permission to enter another jurisdiction. How will applications from those with inadmissible asylum claims therefore be treated when they apply for support?

Secondly, what will happen to those who have arrived since 7 March and are currently in receipt of Section 95 support—a number already in the several thousands? Will their asylum claims be immediately declared inadmissible, removing eligibility to Section 95 support in one fell swoop? Can the Minister clarify what assistance this group will be given to apply for Section 4 support, or will he commit to automatically transferring people to Section 4 support without requiring a further application? Finally, what assessment has the Home Office made of how many people will be supported under Section 4 in the months and years after the Bill has come into effect? I stress that, to support the effective scrutiny of the Bill, we must know how many families with children will be left solely reliant on Section 4 support.

This set of amendments highlights major questions which remain unanswered about how the Bill is intended to work in practice, beyond the mantra that people will be “swiftly detained and removed”. These are not needlessly prosaic questions to frustrate the passage of the Bill, but a genuine attempt to help those on the front line plan their operational response, which we heard the Minister say earlier was well under way in its planning.

As the Government know, the asylum support system plays a vital role in ensuring that those who would otherwise be homeless and destitute, and who are unable to work and support themselves, have access to basic accommodation and financial support. There is a debate to be had about what form that accommodation should take and how much the financial support should be, but that debate is meaningless if the system is inaccessible. If the system is not adapted to respond to the circumstances created by the Bill, tens of thousands of people could find themselves with no support. On top of the intolerable consequences that this will have for individuals and families, it will inevitably lead to local authorities, faith groups, communities and voluntary groups picking up the pieces.

We often find ourselves in moments of our lives needing to console ourselves and our loved ones that this stage is only temporary and that hope remains. I am constantly in awe of refugees who live with such instability but retain that sense of a brighter future. It is therefore only right that I close my comments by stating the obvious: there is a different way, where asylum seekers have their applications processed in an effective and timely manner so that hope, not desolation, remains a possibility.

This is my week for making apologies. I have to be in Durham very early tomorrow and trains up north are limited, so after dinner break business I will not be able to contribute on those things that I said I would. However, I expect my good friend the right reverend Prelate the Bishop of Southwark to be present and to speak, in his name, on those matters.

[Lord German (LD)]

My Lords, it is a pleasure to speak after the right reverend Prelate. I make no apologies for supporting this group of amendments and I signed the stand part proposition to probe these issues, because they are of such great importance. I also make no apology for using the word “assessment” very frequently in what I am about to say. The Minister will gather that what I am after is some of the contents of the promised impact assessment before it eventually appears.

Clearly, the essence of the clause is to ensure that people get some support for accommodation and subsistence while they are in this world of being inadmissible but have not yet been removed from the country. The starting point here is: how many people are there likely to be in this situation? I have previously asked the Minister whether he thinks that people who are covered by the duty to remove will actually be removed quickly. In other words, will it be in six or nine months? An estimate will do. That is my first question, because it will give us a sense of the size of the problem that we are about to face. We would then be able to identify and understand how many people would therefore require accommodation and subsistence under Section 4.

In the absence of a government impact assessment as yet, the Refugee Council has done its own analysis. Based on the current 0.7% success rate of removing people under the inadmissibility rules, it has assessed that, by the end of the third year after the Bill has passed,

“between 161,147 and 192,670 people will have had their asylum claims deemed inadmissible but not have been removed”.

So that could be the size of the problem. We do not know what the Government think, because they will say that they do not recognise those figures. However, as the Government have not given us any figures, we have no means of judging that.

That group of people will then be without permission to work and will be reliant on Home Office support and accommodation indefinitely. If you look at the size of that cohort and the amount of money that it will cost, you see that it will be between £4.9 billion and £5.7 billion in the first three years. That is based on the assumption that everyone deemed inadmissible would be awarded Section 4 support and that there would be few people who would not get it. The issue arises that, if you do not get it, you will be destitute. As the right reverend Prelate said, the destitute can get picked up by the voluntary sector. But, frequently, local government is picking up the pieces, using funds which are due for other things that should be going on in local authorities, so that they do not have families in absolute destitution on their doorstep.

On the assessment process—just to help the noble Lord—has there been an assessment of the numbers of those who will not qualify for Section 4 support? In other words, is there an estimate of how many would be left with no recourse to public funds and would become destitute? On the suspensive claims, will people who have made a suspensive claim be eligible to apply for Section 4 support? That is probably an easy one for the Minister to answer.

Has there been an assessment of the impact of this legislation on local government funding? Clearly, it would be useful for the Government to understand how much they are currently spending on picking up the pieces of those who are destitute, and how much that would cost if it were magnified by the numbers we have just been talking about. That is why there needs to be a risk assessment for those on no recourse to public funds indefinitely in terms of their vulnerability to exploitation and trafficking. Having no money and accommodation are the sorts of things which fuel the operation of criminal gangs in the United Kingdom.

19:30

I talked about the issue of timeliness. Obviously, there is going to be a longer-term need than simply for short-term accommodation. Section 4 short-term accommodation is something that people can move on from. If we have a larger number—whatever that number might be—who are not yet removed from the United Kingdom, we will need some long-term accommodation. Have any plans been made to provide long-term accommodation, given that the Government hope the Bill will be in operation in a very few months’ time? Will there be any impact assessment of what homelessness will look like after this legislation goes forward?

Another element of assessment is, what is the impact on UK society of having a population without full access to NHS services? No recourse to public finance means, of course, that you are entitled only to primary and emergency care. What will be the impact on pregnant women, for example? Doctors of the World says that women are particularly impacted, as access to antenatal and maternity care are subject to the regulations. Successive confidential inquiries into maternal deaths have found migrants and asylum-seeking women to be at higher risk of maternal deaths, and that the deaths of some women may have been related to concerns over the regulations that cover what NHS services they can have.

So, forcing people into inactivity and taking away any agency they have to improve their lives and contribute to society seems to me to be a not very Conservative approach to quality of life. People are being made ready for exploitation and we are creating a subgroup of society with very few rights. If there were ability to claim and such claims were resolved swiftly and accurately, we could remove people or enable them to rebuild their lives in our society. That is what I hope, in the end, we will come to, but I do not necessarily believe it will happen.

House resumed. Committee to begin again not before 8.13 pm.

Animal Welfare

Wednesday 7th June 2023 Lords Chamber

Statement

The following Statement was made in the House of Commons on Thursday 25 May.

“We are a nation of animal lovers, and animal welfare has been a priority of the Government since 2010. Since then, on farms, we have introduced new regulations for minimum standards for meat chickens, banned the use of conventional battery cages for laying hens, and made CCTV mandatory in slaughterhouses in England. For pets, we have introduced microchipping, which became mandatory for dogs in 2015; we have modernised our licensing system for activities such as dog breeding and pet sales; we have protected service animals via Finn’s law; and we have banned commercial third-party sales of puppies and kittens. In 2019, our Wild Animals in Circuses Act became law, and we have also led work to implement humane trapping standards by banning glue traps. We have done more than any other party on animal welfare, delivering on a manifesto that was drafted with the public’s priorities in mind.

Further to the steps I have outlined, in 2021, we published an ambitious and comprehensive action plan for animal welfare that set out an array of future reforms for this Parliament and beyond. That action plan’s wide-ranging measures relate to farmed animals, wild animals, pets and sporting animals. They include legislative and non-legislative reforms, and extend beyond domestic actions to cover international engagement and advocacy. And we have delivered—since the publication of that action plan, we have delivered on four key manifesto commitments. First, we passed the Animal Welfare (Sentience) Act 2022, which recognises in law that all vertebrate animals and invertebrates such as crabs, lobsters and octopuses are sentient beings. That Act will form the bedrock of the animal welfare policy of the future. We passed the Animal Welfare (Sentencing) Act 2021, which introduced tougher sentences for animal cruelty, increasing maximum sentences from six months up to five years. Last month, we made cat microchipping compulsory, which will help reunite lost pets with their owners. Just this week, we announced that, having brought the Ivory Act 2018 into force in 2022, we will be extending it to cover five endangered species: hippopotamus, narwhal, killer whale, sperm whale and walrus.

In addition to legislating, we have launched the pioneering animal health and welfare pathway. It charts the route forward for improved farm animal welfare for years to come. This government and industry partnership are already transforming welfare on the ground. The pathway does that through annual health and welfare reviews with a vet of choice, supported by financial grants.

I can tell that Opposition Members are feeling weary listening to the expansive list of delivery, but I can assure them that I am not done yet, because today we are taking two further steps in delivering our action plan. First, we are announcing the launch of the new Animal Sentience Committee, which will advise government on how policy decisions should take account of animal welfare. The committee’s membership provides expertise from veterinary and social science and covers farm, companion and wild animals. We expect the committee to begin its work next month.

Secondly, we are announcing a consultation on new financial penalties of up to £5,000 for those who commit offences against animals. That will mean there is a new enforcement tool to use against the small minority of people who fail to protect the health and welfare of animals. This could apply, for example, if an animal is kept in poor living conditions due to a lack of appropriate bedding or shelter.

On top of those measures, we continue to support the Private Member’s Bill of my honourable friend the Member for Crawley, Henry Smith, which will implement our manifesto commitment to ban the import of hunting trophies. Also making strong progress are Private Members’ Bills that ban the import and export of detached shark fins and that ban the advertising and offering for sale here of low-welfare animal activities abroad. I thank the honourable Member for Neath, Christina Rees, and my honourable friend the Member for Guildford, Angela Richardson, respectively.

The Animal Welfare (Kept Animals) Bill started nearly two years ago. It was designed to implement several of our ambitions, including banning the live exports of animals, seeking to prevent pet theft and new measures to tackle livestock worrying. Unfortunately, its multi-issue nature means there has been considerable scope-creep. The Bill risks being extended far beyond the original commitments in the manifesto and the action plan. In particular, Labour is clearly determined to play political games by widening the Bill’s scope.

The Bills and regulations that we have already passed demonstrate the enormous progress that can be made with single-issue legislation, so we will be taking forward measures from the kept animals Bill individually during the remainder of this Parliament. We remain fully committed to delivering our manifesto commitments, and this approach is the surest and quickest way of doing so, rather than letting that Bill be mired in political game-playing. Having left the EU, we are able to and will ban live exports for fattening and slaughter. There have been no live exports from Great Britain since 2020, but our legislation will ensure that that becomes permanent and we remain committed to delivering it.

We are committed to clamping down on puppy smuggling. We will ban the import of young, heavily pregnant or mutilated dogs, and we will be able to do that more quickly with a single-issue Bill than with the secondary legislation required under the kept animals Bill. We are committed to banning the keeping of primates as pets, and we will do that by consulting before the Summer Recess on primate-keeping standards. They will be applied by secondary legislation to be brought forward this year. We also look forward to progressing delivery of the new offence of pet abduction and new measures to tackle livestock worrying.

I am conscious that there are many other campaigns on aspects of animal welfare. I want to assure the House that, in making this change to how we will implement the measures outlined, we are open to future consideration, but we will focus on delivering these key elements. Delivering these measures, as well as everything we have already delivered as part of and beyond the animal welfare elements of our manifesto, shows a Government who care about animals and do not just talk about the issue or play games with it. We are committed to maintaining our strong track record on animal welfare and to delivering continued improvements in this Parliament and beyond. I commend this Statement to the House.”

19:34

[Baroness Hayman of Ullock (Lab)]

My Lords, the Statement we are debating today starts with a list of government achievements on animal welfare. Of course, we always welcome any positive progress on animal welfare measures, but the problem is that that is not really the point of this Statement or why it has been made. What it is actually doing is scrapping the kept animals Bill—legislation designed to protect pets, livestock and wild animals. I point out that we have had to wait until today to debate this, as the announcement was made on the afternoon of 25 May, the last day before recess.

The Bill was first introduced two years ago and was announced again in the Queen’s Speech last year. It would have delivered on a number of Conservative 2019 manifesto animal welfare commitments, including ending the export of live animals for fattening and slaughter, tackling puppy smuggling and banning the keeping of primates as pets. One animal charity has accused Ministers of “an astonishing betrayal”, yet the Statement has the gall to say that this Conservative Government

“have done more than any other party on animal welfare, delivering on”

the manifesto. So, let us remind ourselves about the issue of delivering, because aside from this Bill, the animals abroad Bill was also scrapped. Although I am sure the Minister will say that we have Private Members’ Bills coming to this House, some containing what was in that ill-fated Bill, can he explain why the promises to ban fur and foie gras imports have bitten the dust?

If animal welfare promises are included in a manifesto, they should be delivered. There should not be a pick-and-mix approach by the Secretary of State or Prime Minister of the day as to which proposals are the least likely to upset Tory Back-Benchers. Saying that taking forward the measures in the kept animals Bill individually is the surest and quickest way is an extraordinary statement, when we consider just how long they have been languishing in the Commons. If the Government had been serious about passing this legislation quickly, they could have done so more than a year ago. I have lost count of the number of times that I have asked the Minister and other Ministers about the Government’s commitment to the Bill and when we would see it make progress. I was always strongly reassured, and I genuinely do not blame the Minister for that, but again it is deeply disappointing.

So, what reassurance can the Minister provide that every part of the Bill—I repeat: every part—will make it through this process, with government support, by the end of this Parliament? Can he provide a proposed timetable? Can he guarantee that no part of it will meet the same fate as the promised bans on fur and foie gras imports? Does he agree with Conservative Members in the other place? Conservative MP Tracey Crouch said it was “better than having nothing”, but added that there had been

“an unforgivable delay on the whole bill, which is completely unacceptable”.

Conservative MP Theresa Villiers said she felt

“a sense of frustration and disappointment”.

The Minister will know that I feel strongly that the Government have once again let down those who believe in progress on animal welfare. More than this, the reasons given for dropping the legislation are simply outrageous. To attempt to blame the Labour Party for a Conservative Government’s decision to drop legislation that had strong cross-party support, with no evidence whatever that

“Labour is clearly determined to play political games”,—[Official Report, Commons, 25/5/23; cols. 495-98.]

is an utterly feeble excuse.

I know that the Minister is personally committed to improving animal welfare standards, so I end by saying that it is a shame that he is not in charge, as I believe he would have more backbone on this issue than some of his colleagues in the other place. I look to him to ensure that progress is made.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I welcome the chance to comment on this Statement. The Government have been active on the animal welfare front and I commend their Action Plan for Animal Welfare. I have some questions for the Minister on progress on several fronts on this plan.

I was delighted when the Ivory Act was passed and disappointed that it took so long to implement. I am pleased that the measures in the Act are now extended to cover hippo, narwhal, killer and sperm whales and the walrus, all endangered species.

The animal health and welfare pathway covers farm animal welfare through welfare reviews with a vet of choice. We debated earlier this week the shortage of vets to conduct all the necessary government work. At that time, the Minister detailed the steps being taken to address the vet shortage. Is the Minister able to say whether there are particular geographical hotspots of vet shortage, or is the shortage spread across the country as a whole?

The Statement mentions the new Animal Sentience Committee, the creation of which was not universally welcomed in the other place or in this House. As the committee begins its work next month, is the Minister able to say whether it will be looking at forthcoming legislation across all departments of government, as originally intended, or will it be confined solely to Defra?

I understand the Government’s reasons for not pursuing the kept animals Bill, but I am, nevertheless, disappointed and concerned about certain aspects which the Bill would have covered. The Government appear to be relying quite heavily on Private Members’ Bills to implement strands of their manifesto. As we know, Private Members’ Bills often take a while to complete their passage and are some of the first to fall if there is pressure on official government business.

While I fully support the ban on trading in detached shark fins and banning the sale of glue traps, I am less enthusiastic about the ban on importing hunting trophies. While I think the hunting of large exotic animals for trophies is a revolting practice, there is another side to this. The hamlets and villages which live alongside these wild animals find it hard to make a living out of farming the land, which is often destroyed by marauding game. The expansion of their farming practices into the areas previously inhabited by wild game brings them into conflict with the animals. Villagers are dependent, in some areas, on the exploits of big game hunters for their income. Would not a better system, to prevent the destruction of certain species, be to introduce a quota system, such as used to exist in the USA? There, a hunter could have a licence once every five years to kill a single bear. When his turn came up, he had the year in which to be successful. If he was not, then his licence lapsed, and he had to wait another five years. I readily admit that I do not know if this system still exists in the US, but it did some years ago. I also accept that my comments will not be welcome to those taking part in the debate next Friday on this important issue, and I am not able to be present on Friday but feel both sides of the argument should be heard.

The Government have done much to prevent the export of live animals for fattening and slaughter since 2020, but this is a temporary measure. Can the Minister say when the UK legislation will become permanent and what, if any, barriers there are to this happening soon? There have been several statutory instruments concerning puppy smuggling and banning the importation of mutilated dogs. The Statement indicates that, instead of this being covered by the kept animals Bill and statutory instruments, this will be in a single-issue Bill. Can the Minister say when this might be brought forward—if not in this Session, then presumably in the next?

During the Covid lockdown, we saw a rise in pet ownership, which was coupled with a rise in pet abduction, possibly driven by the rise in the cost of acquiring a puppy or kitten. The Government are seeking, as they put it, to progress

“delivery of the new offence of pet abduction and new measures to tackle livestock worrying”.

I fully support this, but I wonder whether this will be through government legislation or another Private Member’s Bill—can the Minister comment?

Lastly, I want to turn to the issue of keeping primates as pets. This was to have been, for me anyway, a key element of the kept animals Bill. The Government are due to consult over the Summer Recess on the issue of standards for keeping these highly intelligent animals as pets. This gives the impression that it will be acceptable to keep primates as pets. The Statement also refers to secondary legislation as the vehicle for introducing this. If this is the case, which Act will the relevant SI sit under? I am opposed to the keeping of primates as pets and hope the Government will ban this instead of regulating it.

I congratulate the Government on the action they have taken, and intend to take in the future, on animal welfare, and fully support their actions. However, I feel a sense of disappointment that the kept animals Bill will not be the vehicle for achieving further improvement.

[The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)]

My Lords, I am grateful for the contributions made by both Front-Bench spokesmen. We are a nation of animal lovers and that unites us across this House. Animal welfare has been a priority for this Government, and I say to the noble Baroness that she would be hard pushed to find any Government that have done more for animal welfare than we have. On farms, we have introduced new regulations for minimum standards for meat chickens. We have banned the use of conventional battery cages for laying hens. We made CCTV mandatory in slaughterhouses in England. For pets, microchipping became mandatory for dogs in 2015 and, as she is aware, we have just passed this measure for cats. We modernised our licensing system for activities such as dog breeding and pet sales. We have protected service animals via Finn’s law. We banned the commercial third-party sales of puppies and kittens. In 2019, our Wild Animals in Circuses Act became law, and we have led the world to implement humane trapping standards by banning glue traps. Some of these measures were Private Members’ Bills, but we worked with people in both Houses to make sure that these happened.

As the noble Baroness, Lady Bakewell, mentioned, the animal health and welfare pathway is seeing a real step up in the relationship between vets and farms, and the support we can give to farmers in this important priority for improving animal welfare standards. We had the Animal Welfare (Sentience) Act and the Animal Welfare (Sentencing) Act. Last month, we made cat-microchipping compulsory and, as the noble Baroness pointed out, we brought the Ivory Act into force last year, but we have extended it to cover five other species also.

The noble Baroness is being a bit harsh when she looks at the issue in the round because we have had a lot of success with single-issue animal welfare matters, and we are still committed to the measures in the Bill. With regards to the example raised by the noble Baroness, Lady Bakewell, about the ban on keeping primates as pets, this will be on the statute book before it would have been if we had taken this through as a multi-issue Bill, because we are able to do this through a statutory instrument. I cannot remember the piece of legislation that this will amend or add to, but it will be on the statute book.

We remain committed to banning the export of animals for slaughter and fattening. Noble Lords may be interested to know the number of animals that have been exported since we left the European Union is zero. It is an activity that, through economic circumstances and the availability of the necessary infrastructure, is just not happening, but that never stops the Government being determined to do this.

We have the trophy hunting Bill coming forward; I suggest that is when we will tease out some of the legitimate issues raised by the noble Baroness. On shark fins, we will support the ban. The low welfare issues abroad are certainly matters we can take forward.

On the issues raised by the noble Baroness, Lady Hayman, around foie gras, we are keeping to our manifesto commitment. We are looking at the measures that would be required to legislate. We have committed to building a clear evidence base to inform decisions on banning the import and sale of foie gras; we have been collecting evidence on the sector and will continue options in due course. We are committed to taking an evidence-based approach towards exploring potential action on fur. We have already held a call for evidence and are continuing to explore possible outcomes.

When the noble Baroness looks at every part of the Bill, she will see that nearly all of it will have the necessary parliamentary time. We may be able to find an alternative place to bring in other areas such as zoo standards, but there is more evidence to collect on that. I am working very closely with the Zoos Expert Committee to make sure that we are doing that.

In reply to the noble Baroness’s point about vets— I am sure this will be raised by others in this House quite shortly—there is a shortage of vets, certainly in government and the APHA. We are treating this situation very seriously and seeking to address it, and we are working with people such as the noble Lord, Lord Trees, to make sure that the new vet schools which have opened in recent years, which are extremely welcome, are training more vets who will remain in the United Kingdom and service us. There is a particular shortage of large animal vets, and we are working with the royal colleges to make sure that we are finding new ways to encourage people to go into that sector and looking at why there is a disinclination for certain people to go into that area.

I have already covered the point about primates as pets. As for the six measures in the manifesto, we will ban live exports, as I have said, and there will be measures on puppy smuggling and primates as pets. Livestock worrying and pet abduction were not in the manifesto, but we are doing work on those issues. I hope also to be able to do something on zoo licensing. In addition to the manifesto, we have supported the glue traps Act, which passed through your Lordships’ House. We brought in extra penalty notices and extra measures for animal cruelty, and increasing the penalties for hare-coursing has been extremely popular with people—as well as with hares. The people carrying out that activity— I speak with some experience on this matter—are not pleasant when they are confronted.

I hope I am able to convince both Front Benches that the kept animals Bill was designed to implement several of our ambitions, including manifesto commitments on banning the live export of animals, cracking down on puppy smuggling and banning the keeping of primates as pets. Its multi-issue nature means that there has been considerable scope-creep. The Bill risks being extended far beyond the original commitments in the manifesto and the action plan. The Bills and regulations that we have passed already demonstrate the enormous progress that can be made with single-issue legislation. Therefore, we have announced that we will take forward measures in the kept animals Bill individually during the remainder of this Parliament. We remain fully committed to delivering our manifesto commitments, and this approach is now the surest and quickest way of doing so.

[Baroness Hayman of Ullock (Lab)]

Before the noble Lord sits down, if he is concerned about the widening of scope, perhaps he should suggest that the levelling up Bill is scrapped.

[Lord Benyon (Con)]

I will definitely feed that very important piece of information through to my colleagues in other departments.

19:53

[Lord Trees (CB)]

My Lords, I declare my interest as co-chair of the All-Party Parliamentary Group for Animal Welfare. I congratulate the Government on the animal welfare measures to date that have been listed in the Oral Statement of 25 May. I regret the withdrawal of the kept animals Bill but I note that there is a commitment in the Statement to introduce most of its measures. I will disappoint the Minister, because I am not going to mention the shortage of vets—he is very well aware of it, as he has demonstrated. I will confine my comments and questions to the measures derived from the kept animals Bill that are present and committed to, or indeed absent.

First, I note that the Government have committed to banning primates as pets, conducting a consultation before the summer and putting forward secondary legislation this year. That is all very welcome. It is estimated that something like 1,000 to 7,000 primates are kept as pets in the UK. It is very difficult to get accurate figures. There is no doubt that primates have very complex welfare needs which generally would not be provided for in a domestic environment. The kept animals Bill proposed licensing. I am interested to hear from the Minister, notwithstanding the outcome of the consultation, whether it is likely that the Government will introduce a total ban—the word “banning” is used without conditions in the Statement—or whether they are still committed to licensing.

I note that there is a commitment to progressing new measures on livestock worrying. I would be interested to know a little more about what that might involve. Livestock worrying is a huge and growing issue. APGAW has been very concerned about it for a number of years since it published a report on the subject in 2018. A survey this year by the National Sheep Association found that 70% of its respondents had suffered at least one sheep worrying incident in the last 12 months. There are multiple instances of animals on farms either being killed outright or mortally wounded and requiring euthanasia in the last year or two. We strongly support more stringent measures against this increasing crime. I would like to hear a little more about what is envisaged.

With regard to the export of live animals for fattening and slaughter, the kept animals Bill included horses and other equine animals, along with cattle, sheep, pigs and so on. Are horses going to be included in the new measures? I raise this because there are welfare benefits of being able to slaughter horses in abattoirs, but there is only one in England that regularly takes horses. This shortage of equine abattoirs in the south of England in particular may mean that export for slaughter is a positive welfare issue if suitable abattoirs exist close to the ports across the channel—otherwise horses risk being abandoned and having a much more chronic welfare problem.

The importation of dogs in particular, as well as cats and ferrets, is another growing problem. There is a vast amount of criminally conducted smuggling and a gross abuse of the pet travel scheme. I note that the Statement suggests a ban on imports of young dogs—although it does not specify what age—heavily pregnant dogs or mutilated dogs via a single-issue Bill. All this will be extremely welcome.

As I have mentioned, puppy smuggling is occurring on an industrial scale, incentivised by the huge profits that can be made. There is very little chance of prosecutions occurring, and the sanctions are currently quite low. To give your Lordships an example of the profitability, one transporter has been estimated to traffic 6,200 puppies a year, worth an estimated £11.7 million. To bring even more dogs in, we are seeing smugglers bringing in pregnant bitches which will quite shortly produce in the UK more than one pup.

Finally, the illegal trade we are seeing is threatening the biosecurity of the UK dog population. The most recent and perhaps most serious threat has been the increasing incidence of Brucella canis infections in dogs. This is not only a serious infection in dogs but a public health hazard. In dogs, it is essentially untreatable, and the only recommended intervention is euthanasia.

Therefore, stronger enforcement is needed to get to grips with this issue, and I urge that the new measures contemplated bear that in mind. Perhaps we could use modern technology—camera imaging and so on—to detect dogs in vehicles, perhaps also using AI to read the camera results. We really need to scan every vehicle coming in if it is too impractical to make visual checks.

Nothing on zoos is mentioned in the Statement— I would be interested to hear from the Minister why they are excluded. Finally, we welcome the offence of pet abduction being used, which would recognise the emotional cost to owners of pet theft. I would welcome the Minister’s comments and answers to those questions.

[Lord Benyon (Con)]

It just so happened that while I was sitting here I received inspiration, so I am able to answer the noble Baroness’s question. The statutory instrument on keeping primates as pets will see an amendment to the Animal Welfare Act 2006, which the noble Lord, Lord Trees, mentioned. We are consulting, as is required, on the standards that we would apply, which would limit the vast majority of the cases that the noble Lord talked about, where primates are kept in improper surroundings and in improper conditions in houses. As I say, this will happen quicker than would have happened if we were taking this through as a massive piece of legislation, as originally intended.

On livestock worrying, this measure will require primary legislation, so we will consider options for legislative vehicles to take this forward. In the meantime, we will continue to work closely with the Countryside Code, which we amended recently, on ensuring messaging around keeping dogs on leads around livestock. That should remain a priority. However, as the noble Lord will know, 70% of livestock worrying cases occur when a dog is not being managed or is not with its owner—it has escaped. We should not just be working on livestock. I do not know how we legislate on this, but on “Springwatch” last year there was a very good piece about a very rare redshank’s nest that was predated on by a dog. The law is not always the best way of encouraging responsible ownership. However, it should be totally unacceptable that our rarest wildlife is being predated in this way and that livestock continues to be attacked by dogs not under control.

On the export issue, I had not considered the point the noble Lord raised about horses, but he makes a very interesting point and I will take that back to the department. There is a positive animal welfare issue there. Only one vessel works out of Folkestone that is able to transport livestock. I am not sure whether it transports horses, but I will keep in touch with the noble Lord and work with him on that.

The mutilation of puppies and puppy smuggling are revolting crimes. This is a manifesto commitment that we know has a huge amount of support among parliamentarians on all sides of the House. A single-issue Bill could give us the opportunity to put in it additional measures: for example, bans on the import of young puppies, heavily pregnant dogs and those with mutilations such as cropped ears and docked tails. Those would have been implemented through secondary legislation, which would have taken time. Under this new approach, we can bring these measures forward at the same time, which could be effective and quicker.

On dogs, cats and ferrets being imported, the measure we are bringing will allow a maximum of five per vehicle rather than five per person, which is one of the abuses we are seeing, and we are banning the imports of mutilated animals over six months old and heavily pregnant ones. We think this can be delivered through secondary legislation.

On biosecurity, the noble Lord is absolutely preaching to the choir. The horrendous example I can give is the import of animals from Afghanistan, which we were told had all been checked by a vet. However, it turned out that there were cases of Brucella canis and Leishmaniasis among them. That is a horrendous threat and risk to the domestic dog population, and we have to be absolutely clear that we are dealing with this and doing so in the best form possible as regards biosecurity.

On the Zoo Licensing Act reforms, we enjoy a close working relationship with the zoo sector and will continue to capitalise on that to identify non-legislative ways of reforming it. By the end of the year we will publish updated zoo standards, which we have developed in collaboration with the zoo sector and the UK Zoos Expert Committee to raise standards and make enforcement more effective.

On the noble Lord’s last point about pet abduction, I ran a campaign on that in my constituency when I was in the other place, when dog theft became a particular crime and, to be perfectly frank, it was not being taken seriously by the authorities. It is a vile crime because for many people the loss of their dog is much more troubling than the loss of many other possessions they have; it can have an absolutely devastating effect on the owner, and we want to make sure that criminals face the toughest sanctions possible.

[Lord Weir of Ballyholme (DUP)]

I thank the Minister for his remarks so far. I join other noble Lords in expressing a level of disappointment at the Statement made in another House. I think the Minister himself mentioned the oft-used phrase that we are a nation of animal lovers. That is generally the case; it transcends party politics and people of a wide range of affiliations would certainly support that. However, it is fine to talk the talk but we need to walk the walk. In animal welfare, that means ensuring that we have the most robust and progressive legislation that we can on animal welfare. Equally important, as the noble Lord, Lord Trees, identified, is implementation and enforcement. In my experience, without that, the best legislation in the world, particularly on animal welfare, can at times be meaningless.

I do not want to try to score political points on this and, to be fair, on a lot of aspects of animal welfare the Government have been genuinely progressive. I know that not everyone in this House would apply that adjective to the Government in all circumstances, but they can be proud of a lot of their past record and even of some legislation going through at the moment.

I will add one caveat to that and seek a response from the Minister. It is important that current legislation is fully applicable and robust across all the United Kingdom. I express in particular a concern about the trophy-hunting legislation, which, I understand from the other place, does not at this stage appear to apply to Northern Ireland. The reason given was a concern that this might breach the provisions with regard to the single market. With regard to the European situation, a number of countries such as the Netherlands have already brought in these bans, so if the Government have not changed their position on this, it is important that Northern Ireland is included, so I seek an assurance from the Minister that it is at least being looked at.

On this legislation, the ideal position would certainly have been for the Kept Animals Bill to have continued its pathway. It is the gold standard to which I think many in this House would aspire. In addition, having praised the Government, I felt that one thing in the Statement was a little disingenuous. I am not here as a spokesman for His Majesty’s loyal Opposition, but to try to pin the blame on the Labour Party was deeply unfair. What was passing through was the will of the House of Commons, and this is not a situation in which we have a minority Government dependent on a loose coalition of additional support; this Government have quite a large majority in the Commons. Therefore, if the Government have, for whatever reason, decided to do a U-turn or abandon this, or they feel that there are practical reasons why this cannot move ahead in this format, simply to try to deflect from that by scoring political points and passing it on to the Opposition is in this case unfair.

Having said that the gold standard was the reinstatement of the Bill, I think the next best position, as outlined by the noble Baroness on behalf of His Majesty’s Opposition, is a government commitment that every aspect of the Bill will be put in place. At the very least, what we need from the Government is a level of certainty as to what the next steps are. There is a slight danger that we could be like groupies at a music concert: we very much appreciate the back catalogue, but we really want to know what the new material on the next album will be. To that extent, if the Minister cannot give us an assurance tonight that within the lifetime of this Parliament every aspect of the kept animals Bill will be committed to and put into effect—if this is to be taken forward in individual, smaller steps—at the very least the Government have to outline which elements of this they are prioritising; the timetable for each of those elements, and a firm commitment on that; and whether there are aspects of the Bill which can be brought forward without the need for legislation, via another route. I think we need clarity, not just for this House but for the many animal lovers throughout this country—and, indeed, for their animals—to see the levels of protection they are going to be provided with. Let us ensure that we do not just speak of a nation of animal lovers as a cliché but deliver on that. So I want to know from the Government what the next steps are going to be.

[Lord Benyon (Con)]

I thank the noble Lord for his very balanced position on this. To use his analogy, I think this Government are the Taylor Swift of this, because our new material is every bit as good as our back catalogue. As for being progressive, I have always regretted that that word has been poached by parties of the left, because the opposite of progressive is regressive and that is far from what we are. So I am very happy that our approach to animal welfare is considered progressive. We work with the changing values of the population, who demand ever higher standards of animal welfare. Some of these matters are bitterly contested, because there are views in both directions. Nevertheless, we are not afraid to debate them, and we will have plenty of opportunities to do so in the future.

On the noble Lord’s point about Northern Ireland and whether or not the trophy hunting Bill should be included, it is of course a devolved issue. Many different animal welfare issues are debated in our devolved legislatures. The Welsh Government have taken steps to ban electric collars for training animals—a measure we are also taking. They have done it in a different way; we think we are doing it in a more proportionate way.

[Lord Weir of Ballyholme (DUP)]

In relation to it being a devolved matter, there have been a number of occasions—as we saw recently with organ donation—when the Government have intervened on issues with regard to Northern Ireland which would be considered devolved. But the rationale given in the other place for not including Northern Ireland was in the European context rather than it being a devolved issue.

[Lord Benyon (Con)]

The noble Lord’s point is absolutely taken. I completely understand it.

I finish by saying that these are, of course, matters where you can see the glass as half-full or half-empty. I think this is a glass that is nearly full, because we are wanting to take these matters forward. We mind desperately that we have good animal welfare policies and laws in place, and we will continue to work towards that.

Illegal Migration Bill

Committee stage
Wednesday 7th June 2023 Lords Chamber

Committee (3rd Day) (Continued)

20:14

Clause 8: Support where asylum claim inadmissible

Debate on Amendment 57C resumed.

[Baroness Hamwee (LD)]

My Lords, I had got as far as “My L—” when I was interrupted. I am sorry, I do not mean “interrupted”: I mean when we heard the Motion that the House be resumed. It was not going to be a major speech—it still is not, although I could have spent the last half-hour working on it.

I thank the noble Baroness, Lady Lister, who dealt with the issues very comprehensively, and the Refugee Council, which has been so helpful in briefing us. I simply observe the irony of our debating state support in the context of state-inflicted detention.

[Lord German (LD)]

I apologise to the Committee for speaking twice, but of course this is Committee so I can do it again.

To reiterate some of the issues that the noble Baroness, Lady Lister of Burtersett, raised, this is an issue which you need to understand if you are to propose and manage this policy and move it further forward. “What happens next?” is not just a big question, it is of crucial importance to people and people’s lives. I will not repeat my statements about assessments, which are well made and obviously made all the time, but we have heard an exposition of this issue, which needs to be resolved. We need answers to those questions.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank my noble friend Lady Lister for introducing this group of amendments, which concern the duty to remove those who are not detained, and their access to support because they would be otherwise destitute.

Clause 8 amends relevant legislation to provide support on the same basis as for those whose claims are declared inadmissible under Section 80A or 80B of the 2002 Act. My noble friend introduced her amendments in great detail. They would allow for appeals to be made on decisions around support. They would allow financial support to be provided where accommodation support is not needed. They would allow people awaiting decisions on accommodation support to be provided with interim accommodation. They make it clearer that if someone has not yet been removed from the UK, despite the duty from the Secretary of State to do so, they face a genuine obstacle. As my noble friend said, the Government must ensure that no one awaiting deportation faces destitution and danger.

Given the questions about the Government’s ability to actually remove people given the lack of returns agreements, what assessment have the Government made of the support that will be needed? We read in the newspapers that the Government are renting two more barges. Of course, the numbers the barges can accommodate will not touch the sides of the amount of accommodation that will be needed.

My noble friend Lady Lister and the noble Lord, Lord German, asked a number of detailed questions, as did the right reverend Prelate the Bishop of Durham, who I suspect is getting his train as we speak. As the right reverend Prelate said, in practice it will be local authorities, faith groups and voluntary organisations which will be picking up the pieces if there is not adequate government support for people who find themselves in this position. I will listen to the Minister’s response with interest.

[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

My Lords, Clause 8 ensures that there is support available to individuals who would otherwise be destitute where their asylum claims have been declared inadmissible, pending their removal from the United Kingdom. It also seeks to incentivise those whose asylum claims have been declared inadmissible to comply with the arrangements to remove them from the UK, whether that be to their country of origin—where it is safe to do so—or to a safe third country. These provisions will support the overall objective of the Bill and ensure that those who come to the UK illegally will not be able to stay. Pending their removal, we will ensure that we support those who are complying with arrangements for removal. I make no apology for introducing these measures to protect and preserve the integrity of our asylum and migration system.

I am grateful to the noble Baroness, Lady Lister, for setting out her amendments to Clause 8. Amendments 57C and 57F seek to create a right of appeal against a decision to refuse an application for support under Section 95A of the Immigration and Asylum Act 1999, which would take effect only if supporting provisions in the Immigration Act 2016 are brought into force. The Government keep these matters under review but I can answer the noble Baroness’s question directly: there are no current plans to bring those measures into force, and so we consider these amendments unnecessary. Therefore, those who are refused support under Section 4 of the 1999 Act will still be able to appeal the decision.

Similarly, we do not consider Amendment 57D necessary. As I have told noble Lords frequently throughout Committee, our intention is to detain and swiftly remove people. We expect that the overwhelming majority of those who fall within the scope of the duty to remove will need accommodation as well as financial support. These individuals will therefore be provided with financial support to meet their essential living needs, pending their removal from the UK.

Although I recognise the intention behind Amendment 57E, the Government do not consider it necessary to provide a statutory basis on which to provide temporary support. As I have said, our intention is to detain and swiftly remove those who enter illegally and meet the conditions in Clause 2. The details of how the scheme will work in practice, including the support provided during this interim period, are currently under active consideration. We are confident that there is sufficient scope to be able to provide adequate support to individuals pending a determination of their application under Section 4 of the 1999 Act. Obviously, we will bear in mind the contributions made during this short debate.

Finally, Amendment 57G seeks to amend uncommenced provisions in the Immigration Act 2016 and, in so doing, alter the long-standing position that Section 4 support would be available only to people who face a genuine obstacle in leaving the UK. The Government have no plans to implement the 2016 Act provisions in the immediate future; even if we were to do so, we see no need to alter the existing approach to eligibility under Section 4 for this group of people. Eligibility for Section 4 support is a long-standing position. As long as individuals whom we support pending their removal co-operate with the process, they will remain eligible for support.

The noble Baroness, Lady Lister, the noble Lord, Lord German, and the train-bound right reverend Prelate the Bishop of Durham asked about the Section 4 application form. We are working on the arrangements for implementing these provisions. As part of that, we will consider what changes, if any, are required to the Section 4 application form.

Where necessary, the Government will provide accommodation and basic support for those who are subject to the duty to make arrangements for removal and who are not being detained pending their removal. In answer to the right reverend Prelate, I can assure him that, with the changes made by Clause 8, we consider that there is sufficient legislative cover to provide such support where a person would otherwise be left destitute. On that basis, I invite the noble Baroness, Lady Lister, to withdraw her amendment.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am grateful to all noble Lords who have spoken, including the right reverend Prelate, in his absence; we know that he had to get his train. I am also grateful to the Minister for answering more questions than I expected him to be able to.

I am disturbed by the proposition that it is not necessary to provide a statutory basis for temporary support because the intention is to remove people quickly. The Government are the only people who think that removal will be quick. All the organisations on the ground predict a state of semi-permanent limbo—purgatory, as some of them have called it. There needs to be a proper statutory basis for the support that these people are provided with. I hope that the Minister will look at this point again.

Other noble Lords have asked questions that have not, I think, been answered. I would be grateful if the Minister or his officials could look through Hansard and answer any remaining questions. The noble Lord, Lord German, certainly asked a number of questions that have not been addressed. I will not detain the Committee now by pressing them—I am sure that the noble Lord will not either—but I ask that a letter answering those questions goes to the noble Lords who have participated in Committee before Report.

It would also be helpful if the Government published as clearly as they can a statement on what is proposed. We can piece bits together from the Minister’s reply today but the point has been made that local authorities, faith groups, refugee organisations and others need to start planning; they need to know. A clear statement would therefore be helpful.

I finish by quoting the right reverend Prelate the Bishop of Durham, who said that this is going to be like detention without walls. That is a very telling statement. It is important that we get this right. We do not want large numbers of people destitute on our streets because they are in this permanent limbo. I look forward to seeing what the Minister has to say in any subsequent letters but, for now, I beg leave to withdraw the amendment.

Amendment 57C withdrawn.

Amendments 57D to 57G not moved.

Clause 8 agreed.

Amendment 58

Moved by

[Baroness Hamwee]

58: After Clause 8, insert the following new Clause—
“Repeal of asylum seeker accommodation regulationsThe Houses in Multiple Occupation (Asylum-Seeker Accommodation) (England) Regulations 2023 are repealed on the day on which this Act is passed.”Member's explanatory statement
This amendment provides for the repeal of the Houses in Multiple Occupation (Asylum-Seeker Accommodation) Regulations 2023.

[Baroness Hamwee (LD)]

My Lords, this amendment relates to a statutory instrument that has recently been approved.

I appreciate that the issues of the use of houses in multiple occupation for asylum seekers and the changes in the standards applying to such houses for that purpose may not have crossed the inboxes of most noble Lords; they certainly had not crossed mine until I was told that the SI changing the regulations was scheduled and found myself scheduled to speak on it. Like many such instruments, it was considered in Grand Committee and then went through the House very quickly. The purpose of the instrument is to make provision to exempt accommodation provided by the Home Office for asylum seekers from licensing requirements; that sounds quite straightforward.

20:30

My noble friend Lord Scriven and I spoke in the debate in Grand Committee because of our concerns and those of relevant organisations which were, I think it fair to say, caught out by the speed with which the instrument went through. We chose to use the mechanism of an amendment to the Bill to repeal the SI and thus bring it to the House.

I thank the noble Baroness, Lady Scott of Bybrook, who I am aware has sat through quite a lot of debates on the Bill without our getting to this amendment but appears unable to be here now. I guess that is how it goes when you are a Minister. I thank her and the noble Lord, Lord Murray, for the letter which my noble friend and I received. I particularly wanted to thank the noble Baroness for how she dealt with the questions raised in Grand Committee. My noble friend shot out very direct and pertinent questions at enormous speed and it is mostly his questions which the letter addresses. We will hear whether he is satisfied with that, and I will leave him to pursue those issues.

There are two broad areas of concern as well as a lot of detail: first, the condition of the accommodation in the new regulations in which asylum seekers will live; and secondly, the impact more broadly on this part of the rented sector. On the conditions, we have heard news over the last few days of asylum seekers sleeping in the street in protest at the conditions they were faced with, including sharing rooms with non-family members. There was quite a lot of reporting about what happened at a hotel in Pimlico, which should have blown apart the notion that a “hotel” in this context means five-star luxury.

In the case of houses in multiple occupation, they and “hotels” mean two or more households sharing basic amenities—bathroom, toilet and cooking facilities. HMOs are regulated and licensed. Licensing was introduced primarily to protect from fire, after a fire in 1981 in which eight people died and about 100 were left homeless, all of them having been living, I understand, in a warren of 56 bedsits. They were asylum seekers from South America.

Mandatory licensing by local authorities was introduced in 2004. It enables an authority to know where the HMOs are in its area because the landlord has to tell it when they apply for a licence. Among the standards required is that landlords and managers must be fit and proper persons.

I understand that provider staff who have had contact with asylum seekers in the hotels that have been used over the last months are required to be DBS checked and, to quote the Ministers’ letter, “have had appropriate safeguarding training”. I have to say that we have seen how well safeguarding has worked for asylum seekers in hotels.

Local authorities’ oversight of HMOs is funded by the fees paid by landlords, and it does not take much imagination to start to worry that the owners of properties which lend themselves to such use will see this as easier and more profitable than letting them as regular, standard —if I can put it that way—HMOs. Local authorities are to receive an incentive payment for beds available within an expedited framework during a four-month pilot. As I understand it, there is no commitment beyond the pilot and this is not, as I recall, in the instrument in any event.

Local authorities, as your Lordships will know, have homelessness duties. London Councils, in briefing us on the instrument, refers to London boroughs—of course, this is not unique to London by any means—

“facing an acute and worsening position”

and notes that

“the number of households owed a homelessness relief or prevention duty”

was considerably higher than a year ago. The briefing continues:

“Challenges in the private rented sector are making it more difficult for councils to procure and retain suitable accommodation, a situation exacerbated by competition with Home Office contractors for properties.”

The 25 London boroughs which provided data show that they

“procured 26% fewer private rented sector properties for homeless households in February 2023”

compared with a year ago. The total number of temporary accommodation properties requested back by landlords was 150% higher over the same period. The number of people in unsuitable B&B accommodation has gone up massively.

The impact on the supply of housing, as we predict will happen, will not be an unintended consequence. It is no wonder that over 130 organisations joined the Chartered Institute of Housing, the Joint Council for the Welfare of Immigrants and a major refugee charity in signing a letter to the Home Secretary and the Levelling-up Secretary about the detail of the scheme and wider issues. Their note on this letter says that

“the strain on the asylum accommodation system is due to excessive delays in asylum decision-making and the fact that those seeking asylum are not allowed to work”.

It then urges the Home Office to address these problems rather than deny people who are seeking sanctuary the basic accommodation rights that should be afforded to all tenants. I quote that not because it will be news to any Members of the Committee but because the points about the backlog, decision-making and the right to work always deserve to be emphasised. Shelter says that the housing emergency is likely to be exacerbated because of the risk of family homes being converted to Home Office HMOs, because of landlords being incentivised to pull out of letting to people who need to claim local housing allowance—which has been frozen for more than three years and so is less profitable to them—and because of landlords pulling out of offering properties to councils for use as temporary accommodation.

The Local Government Association has set out in a long briefing its asks, as it calls them. I will pick out just a few, because otherwise I could keep your Lordships here for considerably longer than I had planned to. One is that the sector is engaged in the development of the policy. Though the Government have said that they want to put engagement structures in place, there are no details yet. It wants to co-design with the Home Office how inspection teams will work across the two types of housing and share intelligence. Adequate new burdens funding to councils will not come as a surprise either, given what I have just explained. It is hardly an ask to ask to understand how HMO licensing will slow down procurement, because providers do not have to wait for an HMO licence. That is another point about engagement. Rightly, it wants to explore with the Home Office the barriers that the Home Office and its private sector providers identify, which could be addressed in ways other than with the regulatory change being further extended.

When I saw the title of this SI, I thought, “Oh, I can knock off a short speech on that on Sunday afternoon for Grand Committee”. When I started to think about the number of issues—which my noble friend is going to add to—the list grew and grew. That is why I beg to move Amendment 58.

[Lord Scriven (LD)]

My Lords, I speak in favour of Amendment 58, which I put my name to, moved by my noble friend Lady Hamwee. I draw the Committee’s attention to my interest as a vice-president of the Local Government Association.

I reiterate what my noble friend Lady Hamwee just said: history is important. The catalyst for licensing HMOs in this country was a fire in 1981 in which eight individuals were killed and 100 residents of 56 bedsits were affected. Those who survived and those who died were all asylum seekers. That was the catalyst for the HMO licensing regime. That is where the campaign really started. The key issue for the introduction of the HMO licensing was to allow local authority housing enforcement teams to hold HMO landlords in their area to account for providing national minimum standards, and for local authorities to know exactly where HMOs were, so that they could be inspected effectively.

When the statutory instrument was in Grand Committee, the Minister, the noble Baroness, Lady Scott, was very reassuring in telling the Committee that this had nothing to do with the dilution of standards and that it was all about speed to get houses for asylum seekers ready to go so that they could be housed. Speed can and does cut corners. It became quite obvious from the written answers we received to our questions in Grand Committee that the standards will be watered down, and in some cases will now be dangerous and potentially lead to fires and other issues that could cause fatalities. These are standards for homes, not houses but homes, for some of the most vulnerable people in the world.

There were 11 standards raised in Grand Committee, which included everything ranging from the electrical compliance of equipment to HMO landlords being fit and proper persons for those properties. Of the 11 standards, only one is either equivalent or better than the HMO licensing conditions. All the others are a dilution of the standards. For example, the licensing of HMOs minimum standards state that the electrical appliances and furniture supplied by the landlord must be maintained in a safe condition and that a declaration of safety for all electrical appliances and furniture must be supplied on demand by the authority. However, the Home Office equivalent asylum accommodation and support services contract states only that electrical appliances are required to be inspected once every five years. It says nothing about the condition of furniture.

20:45

On the condition of carbon monoxide safety, the HMO licensing scheme says that a carbon monoxide alarm is required to be installed in any room in the house that is used wholly or partly as living accommodation and contains a fixed combustible appliance other than a gas cooker, that alarms must be kept in working order, and that a declaration of the condition and positioning of smoke and carbon monoxide alarms must be provided to the authority on demand. However, the provision in the Home Office contract is just that a carbon monoxide alarm is required in a property that has a solid fuel or gas appliance. It says nothing about how they are monitored or positioned. Again, this is a very serious watering-down of house safety and standards.

Other questions were asked and the Written Answers that followed showed very little concern for the safety of the people who will be in these unregistered and unlicensed houses.

The Home Office, in trying to placate the Grand Committee, said it is doubling the number of people in its inspection team for monitoring Home Office properties as part of the contract. I asked what the new full-time equivalent number would be and how many, on average, would be available for each local authority area. The answer came back that the number would be doubling —no numbers, just doubling. If you have one and you get two, the number has been doubled. I expect the team to be more than one at present, so again I ask Minister what the number of full-time equivalent members of the team will be once it has doubled. Also, what is the average number for each local authority?

Another question asked at Grand Committee was whether the inspectors who go into these properties were independent of the Home Office. This is important, because the HMO licensing authority is an independent local authority that goes in with professionals who have absolutely no connection at all to the landlords. Are the inspectors who go into these properties independent of the Home Office? I am sure that noble Lords will not be surprised to hear that they are not independent of the Home Office; they are employed by and are part of the Home Office.

My noble friend Lady Hamwee raised concerns about unscrupulous landlords. These are not my words but the words of experts in the property field, who say that unscrupulous landlords will no longer wish to see themselves as part of a HMO licensing inspection and will just offer their properties, at a lower standard, to the Home Office for asylum seekers.

Noble Lords who spoke about this in Grand Committee were uneasy about the SI’s intentions and its implications. The answers that we have received mean that these regulations need to be repealed as a matter of urgency. Remember that HMO licensing came in because of the tragic deaths of eight asylum seekers. With the latest comments over the weekend from certain Home Office Ministers about the living conditions of people seeking asylum, with up to four people having to share each hotel room, it is clear that the Home Office cannot be trusted with the safety and dignity of those seeking asylum and their having safe, habitable accommodation. HMOs, regardless of who is living there, need to be safe and to be inspected by an independent local authority licensing scheme. That is why this statutory instrument should be repealed.

[Baroness Lister of Burtersett (Lab)]

My Lords, I rise in support of Amendment 58. I am sorry that I could not be at the Grand Committee debate on the regulations because of another commitment. Given the representations that have been made by a range of an organisations, I felt it was important to say a few words.

All people should have access to secure, safe and decent accommodation, no matter what status they hold. While it is right that we should not have people housed in hotels for longer than necessary, the removal of so-called red tape, which potentially includes shortcuts around safety standards, as we have heard, seems exceedingly risky. Once again, we have been asked to put our trust in the Home Office and its subcontractors instead of properly resourcing local authorities to provide adequate housing. This is not the way to address the backlog or accommodation shortages. The speed of procurement should not come at the possible cost of life.

Earlier this month, while the Levelling-Up Secretary was unveiling new laws protecting renters’ rights, his colleagues were debating the Government’s intention to scrap HMO licensing for asylum seekers’ accommodation. That seems somewhat perverse. The Government state in their Explanatory Memorandum to the regulations that part of the rationale for the change was that subcontractors

“raised concerns that … regulation is posing a barrier to acquiring … properties”.

But the suspicion is that subcontractors’ concerns are motivated more by profits than by the need to reduce backlogs and move people into accommodation. As my noble friend Lady Taylor of Stevenage asked during the Grand Committee debate, what evidence is there—again there is this question of evidence; it seems that with every amendment we are asking for evidence—to suggest that this change in regulations will speed up procurement of accommodation? The potential to undermine safety and standards seems very risky if there is not clear evidence to suggest that it will achieve the Home Office’s intended outcomes. Local authorities are concerned that any further erosion of enforcement powers will lead to a decrease in accommodation standards, where the reverse is needed.

The excellent briefing from the Chartered Institute of Housing, Crisis, JCWI and others argued:

“The assertion from the Government that HMO licence levels of protection will be maintained in these properties, but overseen by the Home Office rather than the local authority, is deeply suspect. People are already losing their lives in asylum accommodation managed by private subcontractors on behalf of the Home Office”.


Echoing the noble Baroness, Lady Hamwee, and the noble Lord, Lord Scriven, it was alarming to read at the weekend that asylum seekers were left on the streets in Westminster for two nights running because of accommodation problems and that the Immigration Minister had led moves to require groups of up to four adult males to share single rooms in so-called Operation Maximise. Richard Drax, a Conservative MP, has equated this to putting them in prison. As the leader of Westminster Council commented, to ask people who are

“likely to have been through significant and traumatic events … to share an inappropriately sized room”—

we are talking about a single room here, not some palatial five-star room—

“with multiple strangers defies common sense and basic decency”.

Basic decency, as well as safety, is what is at stake with these regulations.

Can the Minister give us an assurance that Operation Maximise will be abandoned at once in the interest of basic decency? With regard to these regulations, can he reassure us that the Home Office or its contractors have the skills to make a proper assessment of the risks around fire safety that an experienced and qualified local authority environmental health officer would have?

In the recent debate in Grand Committee, the noble Lord, Lord Scriven, asked the Minister to confirm that the same conditions that apply to an HMO licence will be replicated in the contract with the provider of accommodation for those seeking asylum. I do not think that the noble Lord has asked this again tonight, but I hope he will forgive me if he has. As the DLUHC Minister was unable to answer the question because it related to Home Office responsibilities, perhaps the Minister could provide an answer now.

In conclusion, this amendment should have never been needed but, unless we get serious assurances around living and safety standards, I can only question how the Government have decided that creating unsafe homes and putting asylum seekers in them is a decent strategy. As the Chartered Institute of Housing has said, HMOs will undoubtedly prove cheaper, but at what cost?

[Lord German (LD)]

My Lords, this amendment, at its heart, is about the Government’s proposal to exempt housing for asylum seekers from licensing conditions. My noble friend Lady Hamwee outlined the two principal areas of concern, which have been the thread throughout this short debate. One is the conditions of the accommodation and the second is the impact on the rented housing sector in its entirety. I would add that the limited number of properties that are available in the private rented sector is in danger of impacting seriously on the number of houses for people who are looking for that accommodation but are not asylum seekers.

I will ask the Minister as well about the devolved responsibilities in this area, because the private rented sector in Wales is quite differently managed under Welsh Parliament legislation. I would like to understand whether the Government have consulted the devolved Administrations to find out how they propose to deal with this matter. In the case of Wales, all private rented sector accommodation is required to be licensed, not just HMOs. There is a strict regime and landlords pay for that licence. Clearly, that has had some impact on raising standards. That is an important issue, and if it is going to be reduced further, the Government need to explain why.

My noble friend Lady Hamwee pointed out that there is a better way forward, and mentioned the need for a more collaborative, non-regulatory approach. My noble friend Lord Scriven pointed out that licensing provides protections, and I think we all understand that. He illustrated it by talking about smoke and CO₂ alarms. The reduction in standards is implicit in the proposals that are contained in the statutory instrument. It seems to me that we need to have a proper inspection regime, as stated by my noble friend Lord Scriven. The noble Baroness, Lady Lister, raised the issue of the safety of people being at risk. That is at the heart of all this. Are we going to put the safety of this vulnerable group of people at risk by returning to the original situation before the HMO legislation came into place? Are we going to manage the contractors properly and correctly? Clearly, the process of creating unsafe homes is not in anybody’s interest in this country at all, and neither is placing people within them.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Scriven, for moving this amendment. It was a good idea to address this issue in this context, even though it was fully addressed when the SI was debated. The Labour Party voted against the SI in the House of Commons, but it was not pushed to a vote in this House. Nevertheless, this is an appropriate Bill for us to address the issue again.

As we have heard, the regulations for HMOs were brought in following a fire in Notting Hill in which eight people died and almost 100 people lost their homes and possessions. Almost six years after that came the catastrophic fire in Grenfell Tower. These DLUHC regulations could lead to another fatal fire in an HMO used to accommodate people seeking asylum or other people in housing need. As we have heard from the briefings that we have all received—particularly the Shelter briefing, which was a particularly full briefing —people seeking asylum can be particularly vulnerable to fire risks, due to disabilities and health problems, being unaware of what standards to expect in a new country, being unable to read or speak England, and perhaps being reluctant, or less able, to complain to the authorities.

21:00

Parliament is finally about to pass the Social Housing (Regulation) Bill, which reintroduces the proactive regulation of social homes following the Grenfell Tower fire. The regulations addressed in the amendment go in the exact opposite direction.

The noble Baroness, Lady Hamwee, and the noble Lord, Lord Scriven, asked various detailed questions about whether the inspectors are likely to be independent of the Home Office. We have heard that they are not going to be. The point made by the noble Lord, Lord Scriven, which underpins the amendment is that licensing itself—proper licensing—provides protections for the people living in these HMOs. My noble friend Lady Lister asked for evidence, as noble Lords have done in many other amendments to the Bill, that this lowering of standards will indeed speed up the accommodation of asylum seekers in this position.

There are a number of detailed questions here. I look forward to the Minister’s answer, but it is fair to say that there is scepticism in the Committee that the course of action proposed by the Government is the right way to go.

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

My Lords, I acknowledge the gracious compliments paid by the noble Baroness, Lady Hamwee, to my noble friend Lady Scott, which I will pass on.

As the noble Baroness has explained, the amendment would prospectively revoke the Houses in Multiple Occupation (Asylum-Seeker Accommodation) (England) Regulations 2023. Those regulations, which have not yet been made, would amend the definition of “house in multiple occupation” in England for the purposes of Part 2 of the Housing Act 2004. The effect of the regulations is that accommodation provided on behalf of the Home Office for destitute asylum seekers will not require an HMO licence from a local authority for a specified period. The exemption will apply to properties that begin to be used as asylum accommodation from the point when the regulations come into force up to 30 June 2024, and last for a two-year period.

It is the Government’s intention with these measures to ameliorate conditions for asylum seekers. The regulations will support the rapid provision of accommodation for asylum seekers in local areas. I emphasise the urgency of this important reform, which forms part of a suite of measures to accomplish wider asylum delivery plans.

Many contributions—I noted in particular that of the noble Baroness, Lady Lister of Burtersett—focused on the use of hotel accommodation for asylum seekers. There are over 56,000 asylum seekers currently living in contingency accommodation, mainly hotels. The reform will support the necessary steps being taken to accelerate moving asylum seekers out of hotel accommodation—which the Government accept is inappropriate, generally speaking, and furthermore is more costly—into more suitable and cost-effective accommodation.

[Lord Scriven (LD)]

I notice that in the statutory instrument there is no impact assessment. The Minister has just reiterated what the noble Baroness, Lady Scott, said in Grand Committee, that this would speed up the number of properties coming on to the market for asylum seekers. As there is no impact assessment, could he tell us how many a year will come on to the market for asylum seekers that would not have done if these regulations were not made?

[Lord Stewart of Dirleton (Con)]

The noble Lord asks a highly detailed numerical question, and he will not be surprised to know that I am unable to answer it from the Dispatch Box.

[Baroness Ludford (LD)]

A ballpark figure would do.

[Lord Stewart of Dirleton (Con)]

We will do our best to provide one in short order in writing to the noble Lord, if that would be acceptable to the noble Baroness.

[Lord Scriven (LD)]

It would be acceptable to me, but time and time again, the noble and learned Lord has reiterated what was said in Grand Committee. Surely, that is something he should have asked for in meetings before standing at the Dispatch Box and giving that assurance to the Committee.

[Lord Stewart of Dirleton (Con)]

My Lords, I repeat that I will endeavour to provide an answer to the noble Lord.

The use of hotels as being inappropriate was a matter raised again by the noble Baroness, Lady Lister of Burtersett, in relation to Operation Maximise, and that was a scheme to use hotel rooms to accommodate asylum seekers. It is in order to move away from the use of hotels and provide more suitable accommodation that the Government are advancing these measures.

Asylum accommodation and support contract providers have identified existing licensing requirements for HMO properties as a challenge to swiftly making such accommodation available, in particular where local authorities apply licensing conditions that exceed statutory requirements, detracting from the viability of the property. The introduction of this exemption would mean that national standards apply uniformly to all new asylum accommodation, thus removing barriers to acquiring the more suitable and cost-effective accommodation, of which I was speaking, for housing asylum seekers and assisting in that aim of accomplishing dispersal of asylum seekers so the country bears the burden more evenly.

There were questions from a number of your Lordships —from the noble Baroness, Lady Hamwee, in opening, from the noble Lord, Lord Scriven, and from the noble Lord, Lord Ponsonby, responding for the Opposition—about whether these measures were intended to create lower standards. That is not the case. The Home Office accommodation contracts with our service providers set out clear minimum standards for all asylum accommodation. This is used to ensure compliance with standards similar to those used in local authority licensing.

[Lord Scriven (LD)]

We have answers that the noble Baroness, Lady Scott, gave to us in writing after we had asked the questions. Of the eleven standards that questions were asked about, only one meets the requirements of the national HMO licensing conditions; 10 do not. Therefore, the standards are not similar to the HMO licensing. They are a dilution of standards in the HMO licensing system. Would the Minister not accept that is the case in light of the answers that the Home Office and DLUHC have already given to noble Lords?

[Lord Stewart of Dirleton (Con)]

“Similar” does not mean “the same”. I will endeavour to answer questions raised by the noble Lord, but I would doubt whether the answers I am able to give will satisfy him as much as the answers to his own questions which he has already given.

All dispersal accommodation is required to meet the room and space standards in the Housing Act 1985 or the Housing Act 2004 as appropriate. Properties are also required to have at least one bathroom and one kitchen per five occupants as well as meet the statutory space standards, and this will continue in HMO licence-exempt properties and will be checked on inspection. I will come to the inspection regime in due course.

All dispersal accommodation is also required to meet a range of other standards, for example for effective fire safety risk assessments to be carried out and acted upon, and for gas and electrical safety to be properly certified. The noble Lord, Lord Scriven, spoke eloquently about the genesis of such measures arising out of a tragic fire. I am able to advise the Committee that the Home Office is working with the national fire safety co-ordination centre in relation to fire safety provisions in such properties.

Compliance with these requirements will also be checked by the Home Office’s asylum support contract assurance team. All asylum seekers have access, 24 hours a day, seven days a week, to an advice, issue reporting and eligibility service provided for the Home Office by Migrant Help, where they can raise any concerns regarding accommodation or support services. They can also get information about how to obtain further support.

The noble Baroness, Lady Hamwee, and particularly the noble Lord, Lord German, raised the interaction of such properties with the provision of housing for homeless persons. The Government will do everything they can to mitigate the risk of homelessness, in support of the existing cross-government commitment to end rough sleeping within this Parliament and to fully enforce the Homelessness Reduction Act. To support this, while recognising the burden that local authorities are under, the Government will increase funding for local authorities to support asylum seekers and encourage councils to make properties available more quickly. To support local authorities this year, a one-off payment for each person accommodated on 1 April 2023 has increased from £250 to £750 per person. Councils will continue to receive £3,500 quarterly for each new dispersal bed made available thereafter during the financial year 2023-24. Payment will be made through the same grant process as used in 2022-23.

In addition, as part of a four-month pilot, to which we have had reference, councils will receive a further incentive payment of between £2,000 and £3,000 where a bed is made available within an expedited timeframe following identification. This almost doubles existing funding for those local authorities which take on new accommodation and do so quickly. The Home Office will also monitor any impact and will be conducting a full burdens assessment, working with the Local Government Association.

This brings me to the points raised by noble Lords on engagement with local authorities. I think it was the noble Baroness, Lady Hamwee, who particularly sought assurances about co-operation between central and local government on these matters. Home Office engagement with local authorities has increased significantly, and improved, since the introduction of an engagement strategy which is designed specifically to ensure that impacts on local services can be raised, discussed and mitigated through multi-agency forums.

The full dispersal team also currently meets every region at least once a month and some regions more regularly. These meetings are the key to driving delivery of regional dispersal plans. The Home Office engages regularly with local authority chief executive leads in a number of forums, including the asylum and resettlement council senior engagement group and the strategic oversight group. At these groups, HMO plans are being discussed alongside wider asylum and resettlement-related issues affecting councils across the UK. These are bodies within which the concerns raised in this debate by the noble Baroness, Lady Lister of Burtersett, and others can be raised.

The Home Office will also be arranging an open forum for local authorities to attend to provide local government colleagues with opportunities to discuss issues of concern with senior Home Office officials. Through its strategic oversight group, the Home Office is looking to set up a sub-group which will explore the issue of community cohesion with local authorities. This group would complement other work strands that are exploring related regional impacts.

On the subject of inspections, the Home Office is doubling the size of the current team in asylum support contract assurance to undertake additional inspections and other assurance work in response to the HMO licensing exemption. Inspections will be undertaken by housing health and safety rating scheme-qualified inspectors on all HMO properties that benefit from this exemption at least once in the two-year exemption period. This is in addition to the monthly inspections made by the accommodation providers themselves to ensure that the appropriate property standards are being maintained.

[Lord Scriven (LD)]

I thank the noble and learned Lord for giving way again. I asked this in Grand Committee and do so again today: the doubling is a doubling, but what will the actual full-time equivalent be and what will it mean in terms of the average number per local authority area in England?

21:15

[Lord Stewart of Dirleton (Con)]

Again, the noble Lord asks a question of some detail and I will, with his leave, respond in writing. I appreciate his point that doubling from one to two is not significant. However, the Committee has heard me speak of the breadth of support and inspection that will be given and the expertise of those carrying out the inspections. I am grateful to the noble Lord, Lord Scriven, for nodding his assent; he can expect to receive a letter from the department in due course.

These regulations are subject to the draft affirmative procedure, and the noble Baroness, Lady Hamwee, said as much in introducing the debate. They have been considered and approved by this House and await approval by the House of Commons. They are subject to sunsetting provisions, as stated. They are an appropriate response to the short-term challenges we face accommodating asylum seekers.

The Home Office has put additional measures in place of a robust nature to ensure that housing quality is maintained to a national standard. In addition to the usual assurances via the terms of contracts entered into, an enlarged team of appropriately qualified inspectors will inspect each eligible property at least once during the exemption period, as I said to the noble Lord a moment ago.

I reassure the Committee once again that these regulations and the actions of the Home Office in drawing them up and moving this policy forward are informed by our consciousness of the terrible past tragedies which have overtaken people living in accommodation of this sort. We are all too well aware of the incidents the noble Lord, Lord Scriven, drew to the attention of the Committee, and to which the noble Baroness, Lady Hamwee, adverted in passing at the outset of her remarks. I offer to the Committee an assurance that we are aware of this and that the inspection regime we set up will, as much as is humanly possible, look to prevent such things happening again.

[Lord German (LD)]

I wonder if the noble and learned Lord could answer my question about the devolved Administrations and their licensing powers?

[Lord Stewart of Dirleton (Con)]

I beg the noble Lord’s pardon; I meant to answer that question and sought specific information from the Bill team on it. The regulations apply only to England and not to Wales, Northern Ireland or Scotland.

Finally, I invite the noble Baroness, Lady Hamwee, to withdraw her amendment.

[Baroness Hamwee (LD)]

My Lords, I am not going to say very much. Many Members are waiting to consider the large number of amendments we are scheduled to get through tonight—whether we will or not, we will see.

I thank the noble and learned Lord for his responses to the shedload of questions which came from this side. I was surprised that he started by saying that the regulations are intended to ameliorate conditions for asylum seekers, because it seems to everyone involved that it is about numbers and not better conditions. He has given assurances about engagement with local authorities, but it was the Local Government Association which particularly asked to be reassured about engagement, so this remains a live issue. He said that the lump sum of up to, I think, £3,500 would be paid in the circumstances he mentioned. I had understood from briefing that that was only for the pilot period of four months. Could he let me know after today if that is correct?

Finally, the noble and learned Lord mentioned Migrant Help. There have been a lot of tales over the last few months of people in hotels who have asked for some help from the contract providers who run the hotels or from other staff, and been told, “Oh, go and ask Migrant Help”. I do not think that it is quite the smooth process that was just suggested. However, I beg leave to withdraw the amendment.

Amendment 58 withdrawn.

Clause 9: Other consequential amendments relating to removal

Amendment 58A not moved.

Clause 9 agreed.

Clause 10: Powers of detention

Amendment 58B

Moved by

[Lord German]

58B: Clause 10, page 14, line 5, leave out “and (3)” and insert “, (3) and (3A)”

[Lord German (LD)]

My Lords, as Amendments 61, 62 and 66 are consequential to Amendment 58B, I will speak to all three at the same time as moving it; they all sit together.

Currently, pursuant to Schedule 2 to the Immigration Act 1971, the Secretary of State for Home Affairs may detain people for immigration purposes only in places set out by her in a direction. Detention in places not specified by her in a direction will be unlawful. The Bill amends that direction to include

“any place that the Secretary of State considers appropriate”.

Following the publication of the Bill, the Immigration Minister in the other place outlined that the expansion of the asylum and migrant estate will include military barracks and that the Home Office will

“continue to explore the possibility of accommodating migrants in vessels”.—[Official Report, Commons, 29/3/23; col. 1018.]

More recently, the Government announced plans to house 500 asylum seekers on a barge in Portland, off the coast of Dorset. It remains unclear whether these settings will also be used as detention facilities as the provisions of the Bill seek to give the Home Secretary the power to detain individuals in such places, despite the risks posed by facilities such as Manston, which I will come to later. Some of the further mooted facilities present additional risks of their own, with military bases potentially triggering pre-existing vulnerabilities in people who have likely fled war and/or persecution. Will the Minister explain the reasons for granting the Secretary of State the power to detain people in “any place” that she “considers appropriate”?

If the intention is to allow detention in places not currently set out in the Immigration (Places of Detention) Direction 2021, will the Minister give details of where these places will be? For example, will the detention centres include military sites, such as Scampton in Lincolnshire, Wethersfield in Essex and Bexhill in East Sussex, or barges, such as the “Bibby Stockholm”, due to be moored in Portland? With the announcement this week by the PM of more barges to house asylum seekers, can the Minister advise on the cost of these, given that the aim has been to reduce money spent on accommodation, especially if some of this will be used for detention purposes?

Current Home Office plans suggest that these facilities are being considered for use as asylum accommodation only rather than detention. Can the Minister confirm whether the Government in fact plan to use them in whole, or part, as detention sites? If the intention is to allow detention in places not currently set out in the immigration direction of 2021, will the Minister explain how the Secretary of State will ensure that the standards set out in the Detention Centre Rules 2001 and the Short-term Holding Facility Rules 2018 are met in relation to the treatment of detained persons, including the safeguarding of vulnerable people known to be at particular risk of suffering harm in detention, such as victims of torture and trafficking, pregnant women and those with serious mental health conditions? What legal framework will exist to ensure these standards in such places? Are we to expect regulations and, if so, will we see them in draft before the Bill is completed? Has the Home Office carried out a full risk assessment linked to the proposed expansion of the detention estate and will it be published? How will the Minister seek to avoid scenes such as those at Manston, described by the Chief Inspector of Borders and Immigration as “wretched”, if there is no extra detention capacity when the Bill passes?

It is interesting to note that, just this week, we have had the publication of the report of the unannounced inspection of Manston by His Majesty’s Chief Inspector of Prisons. I am sure Ministers have seen his comments. They are clearly concerning, and I shall briefly mention four priority areas: detention in the facilities was too long; the governance of adult and child safeguarding was poor; there was no accurate data on the use of force or separation from the general population or of incidents of violence and non-compliance; and professional interpretation was not always used consistently. There is a danger that Manston will not be able to cope any better than it was coping when the disturbances took place there more than 12 months ago. The response to the report from the Chief Inspector of Prisons is therefore important, to show that the Home Office will ensure safeguarding and care for individuals, which is not currently present.

According to Charlie Taylor’s report, there is no oversight of leadership and safeguarding, or of the use of force. These are incredibly important issues in places of detention. Care planning for vulnerable detainees and children with disabilities was poor and did not demonstrate individual planning, risk assessment or meaningful welfare checks.

Given the responses that we see about the current detention regime in this very recent report from His Majesty’s Chief Inspector of Prisons, how does the Minister expect to provide new and extra accommodation, given the challenges the Government are already facing, across the country, from many Conservative MPs, for example, who do not want these in their backyards—not in the run-up to an election, I understand? Can the Minister tell us whether barges are really suitable places for the detention of families and children?

Amendment 62 would place the Secretary of State under a duty to consult local residents before authorising the use of any new facility within these categories. This is critical for community cohesion and well-being. Removing someone’s liberty is a deeply serious issue and we are extremely concerned about the consequences of this clause for the most vulnerable in our society, particularly children, torture victims, pregnant women and victims of modern slavery. It seems to us that the Home Secretary is moving far beyond the sorts of powers necessary to detain people in an appropriate manner, and this manner at the moment gives us minimal recourse to scrutiny.

The lives, liberty and well-being of fellow human beings should not be put on the line as collateral damage for a policy which most of us know will never achieve its stated aims but is being used for political appeasement. For the reasons I have outlined, I also oppose Clause 10 standing part of the Bill. I beg to move Amendment 58B.

[Lord Scriven (LD)]

My Lords, I shall speak to Amendments 59B, 61A, 64B, 66A and 79C in my name.

Amendments 61A and 66A would ensure that, if children are to be detained or held in temporary accommodation before they are placed with a local authority, there are basic standards in the Bill to ensure that the type of accommodation is suitable, along with the services and standards that are needed to ensure that the best interests and the welfare of the child are paramount, and that the provisions are exactly the same as in the Children Act 1989.

21:30

Amendments 59B and 64B would ensure that the regulations about detention or the holding accommodation of children are made not by the Home Secretary but by the Secretary of State for Education, whose department has a far better understanding of the Children Act and what it means to put the interest of the child first. Because of this I have also tabled Amendment 79C, which would ensure that until such time as a young person is allocated to a local authority’s care, the department that understands fully the details of the Children Act, the Secretary of State for Education’s, is responsible for the welfare of children in the holding accommodation.

I will explain the rationale for these amendments. It is clear from what has been happening to young children seeking asylum who have been held in hotels that the Home Office has no idea what to do to put the interest or welfare of the child first. The Home Office seems, at best, not to have a detailed understanding of the provisions of the Children Act 1989. At worst, it ignores certain provisions of the Act and has no regard for putting the interests and welfare of the child first and central to its policy of temporarily holding children. What we have seen happening to some of the young people housed in these Home Office temporary hotels is nothing less than a national scandal and a disgrace.

Since summer 2020, unaccompanied children seeking asylum on arrival in England have had their rights systematically breached by the Home Office and have been denied the full protections they should have been afforded under the Children Act 1989. Their needs have not been assessed and they have been unlawfully denied the care of local authorities for unlimited periods of time. Instead, they have been placed in Home Office hotels, many of which are unsuitable, are out of reach of the standards laid down in Section 22 of the Children Act and house vulnerable children alongside adults. Many children have gone missing. I eventually got the Minister to answer from the Dispatch Box that 200 children were still missing. Some of these have been well documented; reports from Greater Manchester Police have indicated that children who have been scooped up have been found in Greater Manchester, used by drug gangs and trafficked for sex. Yet in the Home Office Answers to Written and Oral Questions in this House, it is in total denial about what is happening and refuses to accept that it has evidence from police, such as Greater Manchester Police, about the plight of some of these vulnerable children.

That is why these amendments have to be accepted. To be blunt, if they are not, these vulnerable children will still go missing and will not have the standards that every child in this country should have; the needs of the child will not be paramount.

Amendment 79C would ensure that the Secretary of State for Education is responsible for the temporary care of a child from the moment they arrive here and would be responsible for them until they are placed with a local authority. As I indicated earlier, this is far more desirable—not perfect, but more desirable—than the Home Office having responsibility. The Department for Education has years of experience in dealing with these vulnerable children through close-working liaison with local authorities and issuing detailed guidance for unaccompanied children seeking asylum. This amendment would help to ensure that the interests of the child are put first the moment they step into the country.

Amendments 59B and 64B are in the same vein. The Department for Education fully understands the law and nuances of the Children Act, and the rights and obligations to children to ensure that their interests and welfare are put first. It is therefore appropriate that the Secretary of State for Education, and not the Home Office, issues such regulations under Clause 10.

Finally, Amendments 61A and 66A would ensure that unaccompanied children seeking asylum would not be dumped in unsuitable accommodation, as we are seeing at present, but would have afforded to them the same standards and provisions that are in Section 22 of the Children Act 1989. Section 22(3) sets out the general duties of the local authority looking after a child to safeguard and promote their welfare. This duty underpins all activity by the local authority in relation to looked-after children and has become known as “corporate parenting”. In simple terms, corporate parenting means the collective responsibility of the council, elected members, employees and partner agencies for providing the best possible care and safeguarding for the children who are looked after by the council.

My amendments would mean that those same provisions would apply to children who are not in local authority care but in temporary accommodation that the Home Office has given—that the corporate parenting responsibility would be for the Secretary of State for Education. That includes an assessment of the suitability of the accommodation required for each individual child. Amendments 61A and 66A would confer the same responsibilities and duties on to the Secretary of State for Education the moment the child enters the country, until such time as they are placed with a local authority.

The welfare and care of unaccompanied children seeking asylum is paramount. They should have the full protections of the Children Act 1989 from the moment they reach our shores. These amendments will ensure that the rights of the child are paramount if the Home Office insists on detaining a child or putting them into temporary accommodation before they are in the care of a local authority. I believe it is paramount that this is in the Bill. The rights of the child and the Children Act 1989 are absolutely key to protect vulnerable children who are seeking asylum. That is why I tabled these amendments.

[Lord Alton of Liverpool (CB)]

My Lords, I have only two questions to put to the Minister. I reinforce the remarks of the noble Lords, Lord Scriven and Lord German.

First, I ask the Minister directly about the issue of capacity. I also want to ask him about the role of the Independent Family Returns Panel. Dr Peter Walsh says that the current detention estate has capacity for about 2,500 individuals, yet we all know that last year 45,000 people arrived on our shores. In addition, there are 160,000 asylum seekers still awaiting decisions. If we take those numbers together, how do they square with the capacity that is planned for the estate? I was also struck by the Taskforce on Victims of Trafficking in Immigration Detention saying:

“We expect that tens of thousands of individuals will be indefinitely detained in immigration detention facilities, with the current already overstretched detention estate being unable to hold anywhere near the numbers anticipated”.


My second question is brief. I am concerned about the disapplication of the duty currently placed on the Secretary of State to consult with the Independent Family Returns Panel in every family returns case, particularly where the family involves children. Has the Minister seen the statement from the UK Committee for UNICEF, which has described this decision for disapplication as “regrettable”? Is that something he might give further thought to?

[Baroness Butler-Sloss (CB)]

My Lords, I want to make two quite separate points. I pick up on what the noble Lord just said; have the Government looked at what is really happening on the ground, the numbers of people currently waiting to be removed—that is a very large number—and the numbers coming in? How on earth are they going to get people away? Where they are going and what is going to happen was set out in much greater detail on an earlier amendment.

What worries me as I have sat listening, today in particular but really throughout the debates on the Bill, is that I do not think the Government have yet put their mind to the problems of numbers and how on earth they are going to get rid of these people, if I may put it rather bluntly.

The second point, which is so much more important, relates to what the noble Lord, Lord Scriven, just said, and I not only support him but admire him enormously for saying it. As I said on another Bill some time ago, I remind the Government that the Home Secretary is not a corporate parent, nor indeed at the moment is the Secretary of State for Education. The concept of the corporate parent is to be found in the Children Act 1989, as a local authority. Currently, the Government are expecting to deal with sometimes quite young children. I think they are concentrating on the 16 and 17-year-olds who are coming through and are not looking at a minority—but probably a relatively substantial minority—of children who are much younger. They have to be looked after. I do not want to repeat what the noble Lord, Lord Scriven, said, but it is crucial that they be looked after. The only corporate parent who can care for them is in fact the local authority where the children are. It is about time the Government started to look at not just the best interests of the children, which is so obvious—it worries me that I keep having to talk about that—but the points that the noble Lord, Lord Scriven, made, which really should strike home.

[The Lord Bishop of Southwark]

My Lords, I support Amendments 61 and 62 in the name of the noble Lord, Lord German, and welcome the opportunity to discuss what rules and regulations His Majesty’s Government will adhere to when selecting a site for the purposes of detention. The right reverend Prelate the Bishop of Durham had intended to speak but is unable to be here for this group of amendments; I am glad to be here in his place. I am grateful to Medical Justice for sharing how existing legislation governs both the nature and operation of detention centres. As it is a detailed policy area, I will focus my time on the context for these amendments while also posing questions to the Minister.

First, as the right reverend Prelate the Bishop of Durham explained at Second Reading, the Bill before us changes the nature and scope of detention considerably. It moves detention away from an administrative process to facilitate someone’s removal to a punitive system of incarceration intended thereby to deter asylum seekers from travelling to the United Kingdom. Deterrence, as we have seen, is a key theme stressed by the Government, albeit no evidence or impact assessment has been adduced in its favour. This shift towards incarceration signals a major transition in policy, but in embarking on this shift in the purpose of detention, the Government leave us with a lack of detail on what rules and guidance will be adhered to when the Secretary of State is selecting a place of detention.

However, the Minister replied on 26 May to the right reverend Prelate the Bishop of Durham’s Written Question that individuals can be detained for immigration purposes only

“in places that are listed in the Immigration (Places of Detention) Direction 2021”.

I know that the right reverend Prelate was grateful for that answer. Furthermore, the Minister stated:

“All Immigration Removal Centres … must operate in compliance with the Detention Centre Rules 2001, this includes any additional sites that are opened as IRCs to increase detention capacity”.


Can the Minister therefore say whether it will remain unlawful for the Government to authorise places of detention outside those specified in the direction?

Secondly, will the Minister explain how the power granted by Clause 10 to the Secretary of State to detain people

“in any place that the Secretary of State considers appropriate”

marries up with the Immigration (Places of Detention) Direction 2021? The Minister may understand my concern that the power to deprive a person of their liberty, and how and where someone is detained, should be constrained by law and not the discretion of a Minister of the Crown, or anyone else.

21:45

The Home Office has announced plans to accommodate asylum seekers on military sites such as Scampton in Lincolnshire, Wethersfield in Essex and Bexhill in East Sussex, or on barges such as the “Bibby Stockholm”, already mentioned, due to be moored in Dorset. So I further ask the Minister to confirm that these sites will not be used for the detention of people deemed inadmissible on arrival but for those awaiting a decision on their asylum application.

The Government will understand the potential impact of wide discretionary powers to detain people anywhere, without adherence to particular standards, given the events at Manston in 2022. With a maximum capacity of 1,600, Manston became overcrowded, with the number of people detained there nearing 4,000 towards the end of 2022, and there are concerns that the conditions are likely to have amounted to inhuman and degrading treatment. We cannot allow another humanitarian crisis such as this to occur.

I appreciate that the Minister may not be able to answer all my questions tonight. If that is the case, I ask him kindly to write to me in advance of Report and to send a copy to the right reverend Prelate the Bishop of Durham.

It is the concern of several of us that the proposed new regime of detention facilitated by the Bill does not distinguish whether you are a child, a victim of trafficking or a pregnant woman, and that you will be subject to initial detention of not less than 28 days. Due to the ouster clause, there are also no means for anyone to challenge the lawfulness of the Government’s action, putting it beyond legal remedy. It is therefore of the utmost importance that we understand the legal framework that will be put in place to ensure that detention and safeguarding standards are established, and that detention sites are designated by law, not by expedient, as suitable.

[Lord Etherton (CB)]

My Lords, Amendment 69 is in my name. I am very grateful to those who have co-signed it: the noble Lord, Lord Carlile, the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Cashman.

The amendment provides for a general standard or series of standards to be applied—to some extent, picking up some of the more specific points that have been raised by other Members of the Committee. The amendment says:

“The conditions under which persons are detained pursuant to this section must comply with United Nations High Commissioner for Refugees Detention Guidelines”.


This becomes particularly important in the context of this proposed legislation because there is no time limit currently provided for detention. Indeed, earlier today, the Minister, the noble and learned Lord, Lord Bellamy, made great play of the fact that currently Rwanda is the only country in Schedule 1 which has actually signed up to admit people and therefore the rest of the people are not going to be accommodated by way of a removal.

People who are not suitable to go to Rwanda, which, according to the FCDO’s travel guidelines, would certainly include LGBT people, would be subject to indefinite detention until some other arrangement—if and when, if ever—with a truly safe place for that group was arrived at.

The UNHCR’s refugee Detention Guidelines currently set out, in guideline 8, some 18 minimum conditions of detention. They range from general propositions on treating asylum seekers with dignity to conditions around medical treatment; the ability of persons resident in detention to make contact; physical exercise; for children, education and vocational training; standards of food; and so forth. We certainly know that, on the ground at the moment, those standards are not being adhered to in the accommodation currently being occupied by those who seek asylum.

The time has come—particularly in view of the possibility of detention without any limit whatever; although that issue is going to be dealt with in a later group, I might add that it is in itself contrary to guideline 6 of the UNHCR’s refugee Detention Guidelines —when the Government must commit themselves to the minimum recognised standards that apply to asylum seekers. As others have said, we are not just dealing with numbers—number 1,231, for example. Each of these cases is a human being deserving of dignity and proper treatment.

Those are the minimum standards set down in guideline 8. I would like to know whether it is the Government’s proposal that they should adhere to these minimum standards.

[Baroness Chakrabarti (Lab)]

My Lords, I rise in support of the noble and learned Lord, Lord Etherton, whose Amendment 69 I have signed. It would require detention conditions to comply with those set out in guidelines by the United Nations High Commissioner for Refugees. I need not repeat the arguments that the Committee well understands about the United Kingdom’s historic role in the refugee convention and other aspects of the post-war human rights settlement.

Like many noble Lords in this Committee, I have been in these debates for some time, so I understand that there is some dispute on the Government Benches about the UNHCR. The UNHCR says something; they say, “So what? It is just another woke NGO”. Well, it is not. The UNHCR has a special role in the convention. It is a UN body and it was given a special role in the supervision of the refugee convention.

I simply refer noble Lords to Article 35 of the convention, headed “Co-operation of the national authorities with the United Nations”. We were an architect of the convention and a key signatory to it; I am sure that every Member in this Committee wants to abide by it. Article 35 states:

“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention”.


This body was given from the beginning the very special role of supervising the convention. That is fair enough, is it not? It cannot just be that every nation gets to interpret the convention in its own way; that would not exactly be global governance.

[Lord Wolfson of Tredegar (Con)]

Is that not precisely what the Vienna convention on the interpretation of treaties provides for: that each nation interprets it? States have to relate to and deal with the body to which the noble Baroness refers, but that is separate to the legal question of what the convention actually means. These are two distinct legal questions, are they not?

[Baroness Chakrabarti (Lab)]

Well done. Article 35 continues:

“In order to enable the Office of the High Commissioner or any other agency of the United Nations which may succeed it, to make reports to the competent organs of the United Nations, the Contracting States undertake to provide them in the appropriate form with information”.


The bottom line is that the UNHCR is not just any other body, think tank, NGO or pressure group. It is a specific organ of the United Nations that was commissioned right at the beginning, when this convention was drafted, to have a special role in its supervision. That is why I support the noble and learned Lord, Lord Etherton, in suggesting as a bare minimum that our detention provisions ought to comply with guidelines—they are only guidelines—set out by the UNHCR. We can have these lovely little Oxford Union interventions from Members opposite, but the bottom line is that if we do not comply—

[Lord Wolfson of Tredegar (Con)]

I am sorry, but this is not an Oxford Union intervention. There is a clear distinction between an obligation to co-operate with a body in the implementation of the convention and that body having a role in the interpretation of the convention. They are different legal concepts and, with great respect, the noble Baroness knows that; it is quite wrong to elide one with the other. “Interpretation” does not appear in Article 35 and is deliberately excluded.

[Baroness Chakrabarti (Lab)]

I am very grateful, obviously, to the noble Lord for his intervention. I repeat:

“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees”.


This was the body given special status in the drafting of the very precious convention that was drafted with key instigation by the wartime generation in this country for reasons that I need not repeat.

If we do not comply with guidance from the UNHCR in relation to the detention of asylum seekers and refugees, who will? For that reason alone, I am very glad to support the noble and learned Lord, Lord Etherton.

[Baroness Brinton (LD)]

My Lords, Amendment 70A in this group is in my name and also signed by my noble friend Lord German. It is focused on the protection of unaccompanied migrant children and child victims of modern slavery. Picking up on the theme from the noble Baroness, Lady Chakrabarti, I want to make a brief reference to the United Nations Convention on the Rights of the Child. Article 22 on refugee children says if a child is seeking refuge or has refugee status Governments must provide them with appropriate protection and assistance to help them enjoy all the rights in the convention.

There is consistent medical evidence that immigration detention is damaging the mental health of those who are detained. This Bill now forces children to be detained beyond the very short period which has been about acceptable before, although it was good that during the coalition years we stopped children being held in detention.

People seeking asylum have a very high prevalence of pre-existing vulnerabilities, including serious mental health conditions and histories of being trafficked, tortured and suffering sexual and gender-based violence. This puts them at particular risk of being further harmed in their time in detention.

The health implications of this Bill to detain people anyway without adherence to particular standards was highlighted by the events at Manston. As the right reverend Prelate the Bishop of Southwark has mentioned, it had a capacity of 1,600 but last autumn it was overcrowded, with the number of people detained nearing 4,000 following a decision by the Home Secretary not to send people on to hotels. People were beyond the 24-hour time limit without clear lawful basis for detention in holding rooms or five days in holding facilities.

My noble friend Lord German referred to the recent reinspection of Manston, but it is worthy of note that Charlie Taylor said there seemed to be some improvements while it was “fairly empty” but that he

“was not assured that if numbers increase … the site will be able to cope much better”

than last autumn, which is why I wish to persevere with my amendment. Conditions at Manston deteriorated very quickly and are likely to have amounted to inhuman and degrading treatment in violation of Article 3 of the ECHR, including overcrowded living conditions, unclean and unhygienic facilities, inadequate food provisions—some days without sufficient food or drinking water—lack of adequate medical care and spread of infectious diseases.

22:00

This was not new. Charlie Taylor’s inspection last year made a number of points which I will not go through now, except to say that the care pathways lacked co-ordination, clinical leadership to govern the standard and quality of care was not there and facilities for the management of detainees with Covid or other infectious diseases were poor. There are still reports from doctors that healthcare is patchy. I have talked recently to some directors of public health and GPs in areas that have received asylum seekers. NHS access for those who really need it is very slow and piecemeal, and often there is still no clinical oversight and no real clear strategic co-ordination or pathway, meaning that access to healthcare is delayed.

This is important for children because the position for the healthcare and well-being of children is even more worrying. Medical Justice assessed children detained at Yarl’s Wood and identified psychological harm caused and exacerbated by detention. Symptoms included bedwetting and loss of bowel control, heightened anxiety, food refusal, withdrawal, disinterest and persistent crying. The children expressed suicidal ideation, and physical health problems included fevers, vomiting, abdominal pains, diarrhoea, musculoskeletal pain, coughing up blood and injuries because of violence. They also witnessed their families being subjected to racist abuse during dawn raids and other people being subjected to violence in detention. Children were also reported to have been physically harmed because of violence in detention, and a number of royal colleges of health have described the detention of children as unacceptable, saying that it should cease without delay.

That is why initial health assessments for children must be carried out by a qualified doctor in a safe environment, with an interpreter. IHAs should not be carried out by care assistants working for detention centres and their contractors. Too much is at stake. Does the Minister believe, as he has repeatedly said in Committee, that deterrence should take precedence over rights? What is happening to these children in detention should not be tolerated. What healthcare and well-being standards will be in place for those in detention centres, especially minors, whether with their families or unaccompanied? The amendment sets out the legal framework by which it is perfectly possible to create safe standards to ensure that these children are protected properly. If the Minister cannot provide details, will he accept my amendment?

[Baroness Lister of Burtersett (Lab)]

My Lords, I was going to ask this question in the next group, but it is more appropriate to ask it here. It was raised by Doctors Without Borders in its damning briefing: what specific care will be provided for children with pre-existing or emergent health needs?

Also, following on from my noble friend Lady Chakrabarti, I have been in correspondence with the UNHCR about the different interpretations of the UN convention and the refugee convention that came up when I asked on our first day in Committee why we should accept the Government’s interpretation of the refugee convention over that of the body which has global responsibility for it. The Minister was rather dismissive of the UNHCR, which, in response, highlights that its position on the Illegal Migration Bill—one diametrically opposed to the Government’s—is that it will go against the obligations under the refugee convention. The UNHCR’s institutional position has been conveyed to the Government in the exercise of its responsibilities under Article 35. It does not accept that this is a legitimate interpretation of the refugee convention.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I will speak briefly on Amendment 69 in the name of the noble and learned Lord, Lord Etherton, and others. My intervention is prompted by a meeting I had earlier today with the disabled Greens group, specifically on the question of meeting the needs of disabled asylum seekers and refugees. That caused me to look up the details of the UNHCR Detention Guidelines, specifically point 9.5, which says that states may be required to make reasonable accommodations to ensure that they meet the specific needs of disabled asylum seekers. It says:

“As a general rule, asylum-seekers with long-term physical, mental, intellectual and sensory impairments should not be detained”,


and that accommodation needs to be accessible.

The disabled Greens raised with me their particular concern about the barges, about which the Government seem very enthusiastic and to which they have been paying a great deal of attention. It is difficult to see how those barges could possibly meet the accommodation requirements of disabled asylum seekers.

A number of noble Lords referred to the historic situation at Manston, but we have seen the Chief Inspector of Prisons expressing great concern about what is happening there right at this moment. The focus has very much been on children but, if we are not able to identify and assist children appropriately, I really wonder whether we are also able to identify and assist refugees with disabilities, who may have specific needs. Can the Minister say how the Government will ensure that they meet the needs of asylum seekers with disabilities?

Finally, without in any way daring to intervene in a discussion between two lawyers on a fine technical point, I just note that Article 35 of the convention, referred to by the noble Baroness, Lady Chakrabarti, says that:

“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees”.


The relationship does not look much like co-operation at the moment.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am afraid I rise again to make a point that really should not have to be made. I made the point on a previous group that we are a dualist state where international law is not part of domestic law unless and until it is so incorporated by this Parliament. Later, perhaps in a question, the noble Baroness, Lady Chakrabarti, rather poured scorn and said that this was some sort of technical dualist point. It is not a technical dualist point; it is a fundamental part of our constitution.

Another fundamental part of our constitution is that, when we sign up to international treaties such as the Vienna convention, we have to look at what they actually say. This is not an Oxford Union debating point for two reasons: first, it is far more important than that; and secondly, I have never been a member of the Oxford Union. Article 31 of the Vienna convention, on the interpretation of treaties, says:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.


Each state therefore has to interpret its obligations under a treaty.

Some treaties, such as the European Convention on Human Rights, have a court attached to them. If you sign that treaty and sign up to the court, you are obliged to abide by the rulings of the court, in so far as those rulings emanate from the treaty. For example, Article 46.1 of the European Convention on Human Rights provides that the UK has to abide by any judgment given against the UK by that court. That is what we signed up to in the treaty. The refugee convention does not have a court attached to it. Therefore, this country, like every other, has to interpret the treaty bona fide—in good faith.

What, then, is the position of the UNHCR? It is exactly as the noble Baroness, Lady Chakrabarti, read out from the treaty, but it is not the gloss that she put on it. The word “interpret”, which she used in her speech, does not appear in the treaty. That is not an accident, because the states were not going to give the UNHCR the power—[Interruption.] I will give way if the noble Baroness, Lady Chakrabarti, wants to make an intervention; otherwise, I cannot hear her.

[Baroness Ludford (LD)]

If the noble Baroness, Lady Chakrabarti, does not want to take that opportunity, I would quite like to. The noble Lord makes the point that Article 35 of the refugee convention does not have the term “interpretation”, but it does say, as the noble Baroness quoted:

“The Contracting States undertake to co-operate with the Office of the … High Commissioner … in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.”


I suggest that that is not a million miles from assisting in the common interpretation of the convention.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Baroness and the noble Lord. Acoustics are not always with me. I literally read from Article 35 and so did not use “interpret”. I used words such as “co-operate”. I think that I might have said “supervise”—I believe there is a supervisory jurisdiction. At this late hour, I really do not think that this should be a great beef between lawyers. I just say that there is a duty to co-operate with the UNHCR, and it has a special position as an organ of the UN that we set up. That is why I agree with the noble and learned Lord, Lord Etherton, that our detention policies ought to have serious regard to the guidelines from the UNHCR.

[Lord Wolfson of Tredegar (Con)]

I may have misheard, but I thought I heard “interpret”. I think that other noble Lords did as well. The Official Report will make it clear, no doubt. With great respect to the noble Baroness, in legal terms there is a million miles between a duty to co-operate and giving that other party the right to interpret. There is a huge difference between this country as a state saying that the treaty means whatever the UNHCR says it means and, on the other hand, saying that we will co-operate with the UNHCR to enable it to fulfil its obligations under the treaty but we as a state arrogate and retain the right to arrogate to ourselves in good faith and bona fide what that treaty actually means. It may sound like one is drawing fine distinctions but there is a very clear distinction, as lawyers will tell you, between the right to interpret a document, whether that be a contract or a treaty, and co-operation in the implementation of whatever that contract or treaty means.

[Baroness Ludford (LD)]

The noble Lord is a good lawyer and I am not, and I know that time is pressing on. However, it says more than just that we should co-operate with the UNHCR. It asks contracting states to facilitate the UNHCR’s

“duty of supervising the application of the provisions of this Convention”—

I emphasise “supervising”. I do not know how that terminology was arrived at but it is saying more than that the UK must co-operate with the UNHCR. The UNHCR has a sort of supervisory duty, and I think that is more than what the noble Lord is saying.

[Lord Wolfson of Tredegar (Con)]

I am not focusing on the supervisory duty. For these purposes it does not matter whether we have a duty to co-operate once a month or once a day, or to get in touch with it every half an hour. That is just on the scale of the nature of the co-operation duty. My point, and I submit that it is a fundamental one, is that there is a difference in essence—a conceptual distinction—between a co-operation duty with the UNHCR as to whatever the treaty means and agreeing that whatever the UNHCR says the treaty means is what it means. It is not an accident that interpretation was excluded from Article 35. Having made that point about five times, I will sit down.

[Lord Etherton (CB)]

Perhaps I could just add to all of this. I am sorry to do so; it is a bit unseemly for the lawyers to start arguing among themselves but I think I ought to record that I do not agree with the proposition of the noble Lord, Lord Wolfson, that the effect of Article 31 of the Vienna convention means that this country or any country can give to such a refugee convention any meaning it wishes to. It has to apply, under Article 31 of the Vienna convention, the wording of the refugee convention, bearing its ordinary meaning in the context of what it proposes.

This is a sideline. The Committee needs to concentrate on what the role of the UNHCR is. I think that it is perfectly obvious to virtually everybody that it has a special supervisory role under the refugee convention, as interpreted in accordance with the Vienna convention, in the application and the practical application of the refugee convention. What I was talking about in my amendment, supported by the noble Baroness, Lady Chakrabarti, was giving due weight to such a body. There is no other body that has that role. This body does, and it has been given by the United Nations.

22:15

[Lord Coaker (Lab)]

My Lords, I am slightly nervous to stand up here. On a serious point, I want to say a few brief words in support of the amendments in this group, in particular Amendment 58B, in the name of the noble Lord, Lord German, Amendment 60, in the name of the noble Lord, Lord Scriven, and Amendment 69, in the names of the noble Lord, Lord Etherton, my noble friend Lady Chakrabarti and others.

In the interests of being brief, I will try to cut through to what I think is the fundamental issue. This group is about standards in detention. The reason this raises such concern, which I think the Minister should address, is that new subsection (2I), as inserted by Clause 10, as has been mentioned by others, says:

“A person (of any age) detained under sub-paragraph (2C) may be detained in any place that the Secretary of State considers appropriate”.


That is a huge power to give to the Secretary of State: to allow the detention of people arriving since 7 March, of any age, in any place. It is perfectly legitimate, and summarises all the amendments and all of the comments —I will not go through them all, and if I have got this wrong then people can intervene and I will apologise—for noble Lords to ask the Minister what that actually means in practice.

I thought that the remarks of the right reverend Prelate the Bishop of Southwark, on behalf of the right reverend Prelate the Bishop of Durham, cut to the chase. If that is the situation, how are those standards going to be maintained? What actually are those standards? Are the standards the same in a barge or in a military camp? These are the sorts of details that the Committee would wish to hear from the Minister. What are the standards, given that it can be any age and in any place? What difference will there be between arrangements for unaccompanied children, families and others? This is particularly important because the power in new subsection (2C) is not actually for people who have been definitely determined as being people we would wish to remove; it is that the immigration officer “suspects”. We are talking about the detention of individuals, maybe children, who we suspect.

That leads us into the next group. However, if we are talking about standards, this becomes particularly relevant. We are talking about people who might actually be regarded as legitimate and eligible asylum seekers, even under the criteria of this Bill.

In order to be brief, I think noble Lords are seeking an answer to the question posed by new subsection (2I). A significant extension of power to the Secretary of State to designate any place for somebody of any age demands that the Minister be very clear about what the standards will be in each of those places, and who will monitor them to ensure that those standards are kept to.

[Lord Murray of Blidworth (Con)]

My Lords, as we have heard, these amendments bring us on to the issue of detention. The amendments in this group look at the standards of detention accommodation and seek to impose certain minimum standards in respect of accommodation and the treatment of detained individuals.

As I have repeatedly made clear, we need a new, radical approach if we are successfully to tackle the people smugglers and put an end to the dangerous, illegal and unnecessary small-boat crossings of the channel. The scheme provided for in the Bill needs to be unambiguously clear that if you enter the UK illegally you will be liable to detention and swiftly returned to your home country or sent to a safe third country. I want to make clear that the welfare of those who are detained is of the utmost importance. We will detain families and children, including unaccompanied children, only when it is necessary to do so and in appropriate accommodation with appropriate healthcare provision.

Amendments 61, 61A, 62, 66A and 69, tabled by the noble Lords, Lord German and Lord Scriven, and the noble and learned Lord, Lord Etherton, deal with the issue of accommodation standards and limiting the place of detention. I assure noble Lords that persons detained under the powers conferred by the Bill will be detained in age-appropriate accommodation that meets appropriate standards.

We detain persons for immigration purposes only in places that are listed in the Immigration (Places of Detention) Direction 2021 in accordance with the long-standing provisions of the Immigration Act 1971, at paragraph 18 of Schedule 2. In answer to the point raised by the right reverend Prelate the Bishop of Southwark, following Royal Assent we will update that direction in line with the new detention powers. Moreover, we already have robust statutory oversight of immigration detention, including inspection by the prisons inspectorate and independent monitoring boards at every detention facility, and effective safeguards within the detention process that, I submit, are sufficient.

My noble friend Lord Wolfson made some powerful points about the application of the international instruments to the question of detention standards, and clearly made the point that the UNHCR was expressly not given the right to issue determinative interpretations of the convention. It is up to states to interpret its terms in good faith, as we are doing.

The noble Lord, Lord Scriven, also has Amendments 59B, 64B and 79C in this group, which seek to transfer certain powers in relation to the detention and accommodation of unaccompanied children from the Home Secretary to the Secretary of State for Education. To be clear, the noble Lord referred to the temporary housing of unaccompanied children in Home Office-provided accommodation prior to their transfer to the care of a local authority. Such accommodation is not detained accommodation and is therefore not caught by the provisions of these clauses. I assure the noble Lord and the noble and learned Baroness, Lady Butler-Sloss, that we will return to this issue when we reach Clause 15.

The immigration functions provided for in the Bill are properly a matter for the Home Office. As noble Lords would expect, we regularly consult and work with the Department for Education on matters impacting on children, and that will continue to be the case in respect of the powers conferred by the Bill as they impact on unaccompanied children. As I have said, these are matters that properly fall within the purview of the Home Secretary and, as such, the functions to which these amendments relate should be exercised by her.

In relation to Amendment 70A which is specifically on the health and well-being of detained individuals, I can assure the noble Baroness, Lady Brinton, that we will work closely with the Department for Education to ensure that there are proper provisions for children in detention, and we will build on our current detention facilities to ensure that they are appropriate and provide safe and secure accommodation for children. The statutory guidance referenced in the noble Baroness’s amendment would not be applicable where someone is detained, but we will ensure that all relevant policies that relate to detention will continue to apply.

All persons entering detention are medically screened on arrival and have access to round the clock healthcare. This will continue to be the case. The existing adults at risk in immigration detention policy will be updated in line with the Bill and will continue to act as a safeguard for vulnerable persons in detention.

The noble Lord, Lord German, and the noble and learned Baroness, Lady Butler-Sloss, asked about our plans to increase detention capacity. We are increasing our detention capacity to ensure we have enough detention space, and we already have plans in place to build two new immigration removal centres. These include developing a new immigration removal centre in Oxfordshire on the former site of Campsfield House and a new immigration removal centre at Gosport in Hampshire on the former site of Haslar.

[Lord Scriven (LD)]

If the central tenet of the Bill is to deter people from coming to the UK, why are the Government expanding detention centres?

[Lord Murray of Blidworth (Con)]

I can imagine the noble Lord’s response if we did not expand detention centres. The point is that, as a matter of government planning, we need to have sufficient capacity to ensure that we can detain and swiftly remove those who enter the country illegally, in particular those embarking on dangerous journeys across the channel.

Change will not happen overnight, but we are committed to making this legislation work. We are working to find other solutions to scale up our detention capacity too. The first step is to change the law, which is why we are focusing on getting this Bill through Parliament.

The noble and learned Lord, Lord Etherton, raised a related point, suggesting that large numbers would need to be detained in the absence of returns agreements. I remind him that in addition to our partnership with Rwanda we have returns agreements with 16 countries and that, as I have indicated, a returns agreement is not a prerequisite to our ability to remove people. I hope I have been able to reassure noble Lords about our commitment to maintain appropriate standards of detention accommodation and to provide appropriate care for those held in detention under the powers conferred by the Bill. On that basis, I hope that the noble Lord, Lord German, will be content to withdraw his Amendment 58B.

Amendment 79C intends to ensure that the Secretary of State for Education has responsibility for unaccompanied children as soon as they arrive in the UK. I suggest that the amendment does not in fact have this effect. It places no duty on the Secretary of State for Education to have any responsibility for arriving children. It would give the Department for Education the power to provide accommodation but not a duty to do so. At this stage the children are already in the Home Office system and the Home Office has pre-existing duties under Section 55 of the Borders, Citizenship and Immigration Act 2009 towards those children. The Home Office also runs existing relevant mechanisms such as the national transfer scheme. It is a matter for the Government as to which department should operate these powers.

This amendment could create a great deal of legal uncertainty, which is not in the best interests of children. For example, where children were not accommodated by a local authority on arrival, the Home Secretary could not use her powers under Clause 16 to move children into local authority placements quickly unless those children were in DfE-run accommodation, which DfE would be under no duty to provide. That uncertainty continues with regard to the application of Clause 19 and how any accommodation power linked to a government department that operates in England only could be applied to the devolved Administrations. For that reason, I invite the noble Lord not to move that amendment.

22:30

[Lord Etherton (CB)]

I asked whether confirmation could be given that the Government will adhere to the 18 minimum conditions in the UNHCR Detention Guidelines. It would be very helpful for the Committee to know specifically which ones they intend to comply with and which they do not.

[Lord Murray of Blidworth (Con)]

As I have already indicated, the standards that will be adhered to are those prescribed already in legislation. While the points set out in the UNHCR’s document map on in some respects, there is no exact overlap. The regime which will be applied is that which I have already described.

[Baroness Brinton (LD)]

I wonder if I could ask the Minister two questions. The first relates to his comment before last to my noble friend Lord Scriven about whether the Secretary of State for Education should be the corporate parent for government, as opposed to the corporate parent being local authorities. In the event where there is a delay after a child has arrived before a local authority is allocated to be the corporate parent, who is the corporate parent for that child? The Home Secretary does not have that power; there is no protection and no oversight. I say this in light of the fact that, in Kent, there is a special arrangement for Kent not to be the corporate parent for all unaccompanied minors that have arrived there, for fairly obvious reasons. The concern would be that that child might not get the protection that it needs. That is the first question, which is completely separate to the one on my Amendment 70A.

I am grateful to the noble Lord for his comments about appropriate healthcare, but without knowing what appropriate healthcare is and whether it meets standards that have been set out—even if he says that the guidance would not work—I am somewhat at a loss. Could he write to me to set out exactly what those standards were, because many doctors are extremely concerned about the current standards available for children in detention at the moment?

[Lord Murray of Blidworth (Con)]

Yes, certainly. In response to those two points, as the noble Baroness will have seen, we will discuss this again when we reach Clause 15. But Clause 15(1) provides that the Secretary of State may provide or arrange for the provision of accommodation in England for unaccompanied children. As the noble Baroness rightly identifies, presently in Kent there is an agreement which works well. Initial reception facilities are provided by Kent County Council as the corporate parent, then any unaccompanied asylum-seeking children are transferred within the national transfer scheme. Obviously, it is sensible to have the powers in Clause 15(1) as a backstop, in the event that those powers might be needed. I hope that therefore provides a complete answer to the noble Baroness’s first question.

In relation to the second part of her question as to the standards, as I hope I have already made clear, we will be applying the standards that presently remain. It is abundantly clear that those standards are very detailed as set out. I would be happy to write to the noble Baroness to outline what they are. We will definitely be able to provide that.

[Baroness Brinton (LD)]

I thank the noble Lord with regard to the first issue. I wondered if there was actual data on the time that it takes to provide that transfer for children. What I am concerned about is the gap; we may be discussing it later, but the noble Lord raised the issue himself. Could he provide me with a letter that shows exactly how long it takes to get that transfer through, because I am hearing that there are gaps?

[Lord Murray of Blidworth (Con)]

Because the powers in the Bill are obviously not yet in force, I cannot answer as to whether there would be a gap. But clearly it is anticipated—it is hoped—that there will not be a need to utilise the powers in Clause 15 routinely, because the situation with respect to Kent and other relevant local authorities should provide an answer. I am afraid that the noble Baroness cannot expect me to look into my crystal ball and predict what the situation will be after the Act is implemented.

[Baroness Brinton (LD)]

I am really sorry to prolong this. The noble Lord referred to the national transfer scheme. There is a concern that either it is taking some time or some children are not being transferred; they are, at the moment, without a corporate parent. There must be current data. That is why I ask: what is the normal gap and how many children have not been allocated?

[Lord Murray of Blidworth (Con)]

I am very happy that the noble Baroness has asked me that question. I am delighted to say that, as of yesterday, there are zero children in Home Office UASC hotels. They are all in the care of local authorities. I hope that provides a fairly clear answer to her question. Perhaps I can invite the noble Lord, Lord Alton, to intervene.

[Lord Alton of Liverpool (CB)]

I am grateful to the Minister. My question rather builds on what the noble Baroness, Lady Brinton, has been asking. Earlier I specifically asked about the disapplication of the duty on the Secretary of State to consult with the independent family returns panel and the criticism that has been made by the UK Committee for UNICEF, which said that it regretted that decision. I asked the Minister if he would give further consideration to that point and think further about the safeguards that it enables to be put in place to deal with the kinds of issues the noble Baroness has put to him.

[Lord Murray of Blidworth (Con)]

I am very grateful to the noble Lord. I am sorry that I did not answer that question. The relevant provision is in Clause 13 of the Bill. We will come to discuss it in the 11th group of amendments. Perhaps that might be the moment to explore those detailed points more thoroughly.

[Baroness Bennett of Manor Castle (GP)]

My Lords, may I press the Minister on the issue of disabled asylum seekers? I raised this specifically in terms of what is happening in general provision, what is happening at Manston, how the Government foresee—or not—disabled asylum seekers being accommodated on barges and whether they foresee provision in the new arrangements under this Bill complying with UNHCR detention guidance for disabled asylum seekers.

[Lord Murray of Blidworth (Con)]

The noble Baroness raises an important point. It is obviously right that our guidance reflects the special needs of disabled people in accordance with our duties under the Equality Act. That will continue to be the case. I hope that provides some reassurance for the noble Baroness.

[Lord German (LD)]

My Lords, this has been a very interesting debate, not least because I have seen two lawyers agreeing with each other after having a debate of 10 or 15 minutes about a point of law. It is a fascinating experience.

To turn back to the amendments before us, I thank everyone who participated. In the response the Minister just gave, there are a number of matters which I would like to ask him about. If I understood correctly, he said it is the intention to only allow detention in line with the Immigration (Places of Detention) Direction 2021. I think that is what the Minister said. He then immediately said that, after this Bill is enacted, we will amend it—we will uprate it. I do not quite understand what the uprating mechanism is and why you need to uprate a direction you presently agree with. It would be helpful if the Minister could say what he means by uprating and if they are following the Immigration (Places of Detention) Direction 2021—which, I acknowledge, is the right thing to do.

On Campsfield and Gosport, the Minister said that the capacity would be increased. Could he give an indication of the numbers of places there will be in each of those, or the total for both.

Finally, I have what I consider a bit of a non sequitur, but the Minister said it several times and repeated it today. He said that return agreements are not a prerequisite for returns. I did not quite understand that because if you want to return somebody, you need an agreement that they will be taken. That seems to be an agreement. It was a bit of a non sequitur and certainly did not fall within the wonderful statements we had from the noble and learned Lord, Lord Bellamy, about these matters earlier. If the Minister could address those three questions, I will then be in a position to deal with the amendment.

[Lord Murray of Blidworth (Con)]

As I hope I made clear, once the Bill is passed, the direction will need to be updated, rather than “uprated”. It will reflect the new provisions and any new detention facilities that are available to be utilised at that point. I am afraid that I am not in a position to give the noble Lord an indication of the size at this stage.

On returns agreements, as I think I made clear in a previous group on the second day in Committee, there are different relations with various countries, so circumstances can arise where people can be returned to countries with which we do not have a formal returns agreement. I can write to the noble Lord in more detail on that subject.

[Lord German (LD)]

I thank the Minister for his answer. It would be helpful to know whether the matter of capacity of the two places is just unknown or whether it has not been concluded yet. If that is the case, I presume that the Minister could tell me at some stage what the capacity is.

This has been an important debate and I am sure we will return to it on Report. On the basis of those answers, I beg leave to withdraw my amendment.

Amendment 58B withdrawn.

Amendment 58C

Moved by

[Lord German]

58C: Clause 10, page 14, line 9, leave out “suspects” and insert “has reasonable grounds for suspecting”
Member's explanatory statement
This amendment probes the threshold for detention.

[Lord German (LD)]

My Lords, we now move to the second area of Clause 10, which is about the powers of detention. The clause significantly expands the current powers and use of immigration detention. It removes the current protections for vulnerable groups and the current limits on the detention of children, which offer UASCs 24 hours, children and families 72 hours, and pregnant women 72 hours. It gives extensive detention powers to the Home Secretary, away from the scrutiny of the courts, removing effective remedies to challenge unlawful or unjustified detention. That upsets the constitutional principle of the separation of powers. I am sorry that one of the lawyers has disappeared, because I would have liked to have raised the matter of the separation of powers whereby, in the past, the courts have determined the appropriateness of how long people will be detained.

The Bill says that it is for the Secretary of State, not the courts, to decide the reasonableness of the period of detention. It therefore weakens judicial scrutiny and removes a safeguard which is especially important for individuals who are particularly vulnerable to harm from prolonged detention. The Hardial Singh principles, which were established through UK case law, place limitations on the Home Office’s detention powers, so that it is for the courts to determine the reasonableness of a given period of detention. Those are the current principles under which the courts operate.

The role of the courts, including the High Court in particular, in reviewing the lawfulness of detention is critical to maintaining the rule of law fully in accordance with the role of the judiciary under the constitutional principle of the separation of powers. In respect of detention, the Bill infringes that principle. I expect that the Minister will talk about habeas corpus, but that is not about the reasonableness of detention; it is about whether it is legal to detain. Clearly, that is a distinction which makes the case I am trying to make more appropriate and important.

Amendments 58C, 58D, 63A and 63B probe the threshold for detention; my noble friend Baroness Hamwee will talk about that in a moment. Leaving out “suspects” and inserting “reasonable grounds” to believe the person meets the four criteria of Clause 2 for removal. The lower threshold of “suspects” requires no evidence; I can suspect that something is happening without evidence, except when I see what I think I am seeing in front of me. However, having a cause for “reasonable grounds” means that there has to be some evidence. It is unclear whether legal advice will be available in presenting their case for the inadmissibility of due process, especially when there will have been no judicial oversight for 28 days, under the Bill.

22:45

Amendment 60 would reapply the existing statutory time limit on children, and we will support the amendments in the name of the noble Baroness, Lady Mobarik, on reapplying existing statutory time limits. This clause reverses the safeguards put in place during the coalition Government to end the routine detention of thousands of children and families. The Refugee Council says in its impact assessment that 13,000 people will be detained annually if this clause proceeds. That is an alarming departure, and the Bill will allow the routine, indefinite detention of children, unaccompanied or with their families. UK evidenced research and, more recently, that in Australia, demonstrates the long-lasting damage that detention does to children’s lives, physically and mentally.

The Bar Council—I believe it is a reputable body in understanding how the law works—considers it unlikely that these provisions in the Bill comply with the United Kingdom’s obligations under the United Nations 1989 Convention on the Rights of the Child, in particular, Article 37, which says that

“detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”.

It is deeply troubling and surprising that Parliament should be considering a detention power that could potentially offend that convention. The British Medical Association echoes concerns expressed by the Refugee and Migrant Children’s Consortium that the proposals contained in this Bill will have

“severe consequences for the welfare and physical and mental health of extremely vulnerable children who have fled conflict, persecution and other unimaginable harms and are in desperate need of support, stability and protection”.

So, has the Home Office carried out a full assessment of the risks linked to detaining children and families?

Finally, the Delegated Powers and Regulatory Reform Committee’s report says that the procedures of the SI that are to come, the regulations, should be done by the positive procedure and not the negative resolution procedure which has been adopted. I would be grateful if the Minister said that the Government are considering that matter. In the end, what steps are the Government taking to ensure that individuals who are vulnerable and cannot be safely detained will be swiftly identified by appropriately qualified staff and released, with appropriate safeguards in place, following the removal of currently available legal challenge? Of course, we expect to see the Home Secretary’s risk assessment in the impact assessment which we understand is to follow.

[Lord Anderson of Ipswich (CB)]

My Lords, I would like to accept the invitation of the noble Lord, Lord German, as another lawyer, to address the Hardial Singh principles and habeas corpus, but since, on my reading of the Bill, they arise under Clauses 11 and 12 respectively, I think it might be best to reserve that treat for another day. I do have a question about Clause 10, which I candidly admit I do not find the easiest to understand. The Bar Council, in its briefing prepared by immigration practitioners far more expert than me, states that the powers already exist to detain any individual who is suspected to be subject to the Clause 2 removal duty, that Clause 10 does not provide for any additional persons to be detained, and that the purpose of the clause is simply to remove existing protections for unaccompanied minors, families and pregnant women. Is there any more to it than that?

[Baroness Mobarik (Con)]

My Lords, I shall speak to Amendments 59, 63, 64 and 67 standing in my name. I am immensely grateful to my noble friends Lady Helic and Lord Bourne of Aberystwyth and the right reverend Prelate the Bishop of Durham for adding their names to these amendments. I am also extremely grateful to the many children’s organisations that sent invaluable briefings and gave clarity on the subject. I refer noble Lords to the relevant interests in my name in the register. 

The words “detention” and “children” have no place in the same sentence. In the case of this Bill, it can also mean the possibility of indefinite detention, as proposed by the Government. In 2010, the organisation Medical Justice coined the term “state-sponsored cruelty” in relation to children in immigration detention. Its reports highlighted the great calamity being inflicted on thousands of innocent children, with lasting and detrimental consequences, including leaving them traumatised and suicidal. This led to a deep conviction across the political spectrum that such practices were inherently wrong and that a better, more humanitarian approach had to be taken. A pledge was given in 2010 by someone seeking the office of Prime Minister—David Cameron. He pledged that, if elected as Prime Minister, child detention would end. He was true to his word, and it became part of the coalition’s programme for Government in 2010, with policy changed as soon as 2011. With the Immigration Act 2014, the routine detention of children came to an end. That was progress. It was, as one would expect, a humanitarian response to an unacceptable and cruel practice. It is therefore with some dismay and disbelief that we are seeing attempts to reverse the progress made. Almost a decade on, we are discussing the reintroduction of those measures in an even more draconian form.

This Bill creates powers to detain en masse those who arrive in the UK without permission, on or after 7 March 2023, because they are not coming directly from a country where their life and liberty are threatened. Fleeing war-torn Syria but crossing through, for example, Belgium disqualifies them. As mentioned many times, there are no legal routes to the UK for most of those seeking asylum here. Of those coming, thousands of children could face detention. This is not a random statement but one based on the Refugee Council’s careful analysis in its impact assessment of the Bill. The exact figures are available in its report, but over a three-year period it equates to around 13,000 to 15,000 children in detention per annum. We are talking about babies, toddlers, children who are victims of child trafficking, unaccompanied children and children with families—defenceless little people, many of whom have not yet learned to speak and others who may be of speaking age but have no English language. They are detained, and with no legally defined time limit to their detention. They are detained anywhere,

“in any place that the Secretary of State considers appropriate”,

and without the possibility of bail for 28 days. Needless to say, children’s and refugee organisations are aghast at what is being proposed. They are not alone. Many of us across all Benches in this House and the other place feel the same.

Let us stop and think for a moment that perhaps it is not the intention of the Home Secretary to lock up thousands of children. Perhaps we can put this down to the lack of an economic impact assessment or child’s rights impact assessment conducted by the Home Office itself. If that is the case, now is the opportunity, in Committee in this House, for my noble friend the Minister to reconsider what is being proposed. Of course it is understood that there will inevitably be very specific and limited occasions when children are detained, but the existing legislation already gives parameters for this. That is why I propose amendments to Clause 10, to retain the existing time limits of 24 hours in detention and with safeguards for unaccompanied children. Amendments on those who are with families seek to retain existing time limits so that they can be detained only for up to 72 hours, or not more than seven days where detention is personally authorised by a Minister. Importantly, this should be in short-term holding facilities or pre-departure accommodation.

Existing legislation on the detention of children, as under the Immigration Act 2014, is already in place. I ask only that the status quo be maintained. The Home Secretary may argue that by not detaining children we are creating another pull factor, but the evidence shows that there was no significant increase in the number of children seeking asylum once routine detention ended in 2011.

The question then is what the intention of the Government is if, as Prime Minister Sunak says:

“The intention of this part of the policy objective is not to detain children”.


We were given reassurances by the Minister during the Commons Report stage on 26 April that,

“we do not want to detain children. We will do so only in the most exceptional circumstances”.

There was also assurance from the Minister that the time limits

“will be as short as practically possible”.—[Official Report, Commons, 26/4/23; col. 837.]

However, these tests of “most exceptional circumstances” and

“as short as practically possible”

cannot be found in the Bill. All that can be found following the Government’s amendment is a delegated power for the Home Secretary to make regulations under the negative procedure that specify circumstances for the detention of unaccompanied children. There is also a discretionary power for the Home Secretary to make regulations that specify time limits. There is no clarification in the Bill as to the length of the time limits for detention or to which unaccompanied children they might apply, or how discretion might be exercised. Moreover, the regulations may or may not specify time limits for unaccompanied children. We have no assurance in the Bill that they will. Either way, they will do nothing for children and families.

I understood from my noble friend the Minister that later in the Bill’s passage the Government propose to

“set out the new timescale under which children may be detained for the purposes of removal without judicial oversight”.—[Official Report, 10/5/23; col. 1783.]

I must ask for clarification from my noble friend. If the Government truly wish to detain children for as short as practically possible, why are they disapplying the 2014 safeguards to children affected by this Bill? These safeguards were put in place by a Conservative Prime Minister and a Conservative Home Secretary.

Given this late stage in the Bill’s passage, when do the Government propose to set out these new timescales in the Bill, and what will they be? What are the circumstances in which unaccompanied children would be detained and why can these “most exceptional circumstances” not be stated on the face of the Bill and be open to full scrutiny during its passage? Will those timescales in regulations be an absolute time limit for the detention of children, or merely a timescale for judicial oversight of that detention? As a country in which the rule of law is a pillar of our constitution, can we detain children without judicial oversight? I presume detention is for the purposes of removal but would like clarification on whether the Government are proposing child detention for other purposes. If so, can the legal basis for such detention be explained?

Verbal reassurance is completely inadequate. I am no expert but I understand that this is not the way that laws are made. Laws must be much more firmly established. They cannot just fluctuate depending on which Home Secretary is in the driving seat; that is surely a dangerous precedent. Amendments 59, 63, 64 and 67 seek to place our current safeguards for the detention of children in the Bill, so that children impacted by it need not rely on mere verbal assurance. I understand that the issue of illegal migration is complex and requires a deterrent factor so that those who genuinely qualify can be identified, and that it requires a genuine solution, but I think most here would agree that the solution being proposed is not the right one on so many levels.

We are speaking about defenceless children. I say to noble Lords that it may be difficult for us to think back to our six year-old selves, so let us think about our children or grandchildren, who have neither the physical strength to defend themselves nor the verbal sophistication. We have a moral obligation to ensure that we protect the rights of these most vulnerable human beings.

23:00

My noble friend the Minister has a really difficult task, and he is aware that I am not comfortable with many aspects of the Bill. However, I hope he will acknowledge that with these amendments I am offering something he can accept as a viable alternative to what is currently proposed in the Bill. I look forward to his response.

[Baroness Lister of Burtersett (Lab)]

My Lords, I support these amendments generally, in particular those in the name of the noble Baroness, Lady Mobarik—it is a pleasure to follow her powerful speech. I have added my name to Amendments 60 and 65.

It was to the Conservative-led coalition Government’s credit that they ended the routine detention of children and replaced it with strict limits. It is thus inexplicable, as the noble Baroness said, that the present Conservative Government should choose to reverse that policy. Prior to that reversal, the Royal College of General Practitioners, together with other royal colleges, published an intercollegiate briefing paper which described the

“significant harms to the physical and mental health of children and young people in the UK who are subjected to administrative immigration detention”.

It concluded that the immigration detention of children and their families is “harmful and unacceptable”. Among the evidence at the time was that provided by Medical Justice clinicians, who

“identified psychological harm to be caused and exacerbated by detention. Symptoms included bed wetting and loss of bowel control, heightened anxiety, food refusal, withdrawal … and persistent crying. Many children exhibited signs of developmental regression … some attempted to end their own lives”.

Today, many organisations—health, children’s and refugee—have briefed us about the likely health implications of such a reversal. To quote the Refugee and Migrant Children’s Consortium, the effects on children’s

“physical and mental health included weight loss, sleeplessness, nightmares, skin complaints and self-harm, depression and symptoms of post-traumatic stress disorder”.

It also cites, as did the noble Lord, more recent collaborative evidence from Australia. The Royal College of Psychiatrists warns of the likely damaging impact on child mental and physical health of

“the restriction of movement, lack of community exposure, and limited access to health and educational services”

associated with detention. The Independent Advisory Panel on Deaths in Custody, a non-departmental public body, has warned the Home Secretary that this is

“a group who are particularly vulnerable, including in respect of mental ill-health, self-harm, and suicide due to trauma caused by dislocation from family”.

It also emphasises

“the link between the indefinite nature of detention and feelings of uncertainty and hopelessness, which can increase the risk of suicidality”.

A group of people with lived experience of the asylum system who advise Doctors of the World have written an open letter to Peers which speaks of their particular concern about the detention of children and pregnant women, whose plight I think we will debate shortly. However, more generally on the basis of their experience they write that

“some of us start shaking when detention centres are mentioned, or crying when watching the news about this Bill”.

The Children’s Commissioner has expressed deep concern at the prospect of children being detained for significant periods of time. She has not been reassured by the government amendment—mentioned by the noble Baroness—which does not specify any time limits or cover children who are with their families. Can the Minister tell us what steps will be taken to ensure that children are detained for as short a period as possible, as he assured us they would be? Also, what is his estimate of the numbers of children in detention as a result of this change of policy, in the absence of an impact assessment?

The Children’s Commissioner points out that Article 37 of the UNCRC is clear that children must be detained for as short a time as possible. UNICEF makes the point even more strongly, warning that the broad discretion on the detention of children provided by the Bill

“is not compatible with international standards”

and

“would not comply with the principle of the best interests of the child”.

Some, including the Committee on the Rights of the Child, have gone so far as to argue that Article 37 means that children should simply not be detained at all in an immigration context. Whether or not one accepts that interpretation, it is clear that the powers given to the Home Secretary in Clause 11 once again contravene a key international convention.

Although the Chief Inspector of Prisons’ report published yesterday, mentioned earlier by the noble Lord, Lord German, welcomed some improvements in the short-term holding facilities in Kent, it noted:

“Children were detained for far too long at all sites”.


During the previous six months:

“Detention records indicated that 337 children had been held in breach of the statutory 24-hour time limit”,


with one held for just over three days. It notes that some particularly vulnerable children were held for too long, giving the example of a 17 year-old girl with a 10 month-old baby—conceived, she said, following rape—who was held from 11.30 am and then overnight, for nearly 24 hours. If this is already happening, I dread to think what the situation will be like if Clause 10 reaches the statute book.

The incentives—pull factor—argument used by Ministers in their attempt to justify this retrograde policy would be laughable if the implications for children’s well-being and best interests were not so serious.

[Baroness Helic (Con)]

My Lords, I support Amendments 59, 63, 64 and 67. I believe these are measured and proportionate steps to preserve existing safeguards around child detention—safeguards introduced by a Conservative Government.

Child detention must only ever be a last resort. That is a clear requirement, as many have said, of Article 37 of the UN Convention on the Rights of the Child, which also requires that detention be for the shortest appropriate time. Article 22 requires states to ensure that children seeking refugee status receive “protection and humanitarian assistance”. I hope and believe that these principles will be recognised and shared across your Lordships’ Committee.

There is strong evidence that the mental and physical health impacts of detention on children are severe. For refugee children, often escaping from traumatic circumstances, detention can further compound their trauma. Detention separates children from their peers, interrupts their education, exposes them to violence and denies them the safe, loving and supportive environment that children need to develop and thrive, and which is their right. Detention undermines parental authority and strains the parent-child relationship. This lasts well beyond the period of detention itself. Even short spells in detention can cause trauma and long-term mental health risks for children. When we detain refugee children, we should know that we are making their future lives and integration into society even harder.

My noble friends in government may have said that they recognise these impacts and do not want to detain children, but I am afraid that, as written, this is precisely what the Bill will do. My noble friend Lady Mobarik has explained the existing limits and how the Bill would change them. To reiterate: the detention powers in the Bill would apply to all migrant children and could see them routinely detained in any location for an indefinite period. This is simply not in line with the principle of child detention as a limited last resort.

We know that the immigration system is overstretched. As such, we can reliably expect every time limit and latitude granted to immigration officials by the Bill to be exploited to the full. Therefore, we must make certain that children’s rights and the limits on their detention are guaranteed in law. It is not good enough for my noble friend the Minister to say that child detention should be exceptional. The law must make it exceptional.

There are some problems which new laws can solve. There are other times when new laws will have no effect—or such serious side-effects that they are entirely disproportionate to the problem. If the Government do not feel that they can regulate immigration and asylum without locking up children for extended periods, that is indicative of a broken system. It is not a problem that is resolved by detaining children.

There is no evidence that the introduction of the existing limits on child detention have led to an increase in illegal immigration. There is no reason to think that removing these limits will improve the Government’s ability to control immigration and prevent the dangerous channel crossings. Exposing children to greater risk of harm, with no guarantee of preventing harm, is not a step we should accept.

The existing limits on child detention, brought in after careful consideration by the Conservative Government, meet the practical need that sadly exists. They ensure that detention is strictly controlled and time-limited, as the UN Convention on the Rights of the Child requires. They mitigate the harm that detention causes. They make detention the last resort. That is what we must retain, and I urge noble Lords to support these amendments.

[Baroness Hamwee (LD)]

I remember well when the detention of children was ended by legislation. I visited Cedars, the property—I do not like the term “facility” in this connection—near Gatwick that was used for two or three days before the removal of families who were going to be removed and were at the end of the argument, if you like. What was particularly notable to me were the facilities for the children, and the support that was given to them, who were accommodated there for a very short time, to help them prepare to go back to a country that they may or may not have remembered—indeed, that they may not have ever lived in. It suffused the whole place and was really admirable. You only had to walk into the place to see the equipment and toys, and the information that was set out, as well as the work being done by social workers to support the children concerned. There were no families there at that point; the property used to allow visitors only on days when it knew that no families would be in residence.

I have a number of amendments in this group. The first is Amendment 59A, which seeks to probe the “discretion” given to the Secretary of State in making regulations regarding the detention of unaccompanied children. Amendment 64A is a similar amendment. The reason for my tabling this amendment is to understand whether the envisaged discretion can be exercised to extend the circumstances specified in an earlier part of the clause or to narrow those circumstances.

I discovered a possible answer to this when looking at my next amendment, Amendment 61B, which would provide for the affirmative procedure. Amendment 64C is a similar amendment. I tabled this amendment out of pure instinct that there should be an affirmative procedure, not a negative one. I subsequently discovered that the Delegated Powers and Regulatory Reform Committee, with considerably more logic than I bring to the matter, recommended the affirmative procedure. I quote its report:

“The Memorandum explains that the negative procedure is considered appropriate because ‘the effect of any regulations is to limit the circumstances in which an unaccompanied child may be detained or the duration of detention for the purposes of removal’. In our view, this explanation is misconceived”.


That is very much committee speak for, “We really disagree”. The report went on:

“The regulation making power can only be viewed as a limiting power from the perspective of the Bill as introduced into the House of Commons which conferred an unfettered power to detain unaccompanied children”.


However, amendments were then made in the Commons, so

“no such unfettered power of detention exists in the Bill as introduced into the House of Lords. It is the regulations alone which will specify the circumstances in which unaccompanied children will be capable of being detained, in the absence of which there is no power to detain such children. Given the importance and sensitivity of the subject matter, we consider that the affirmative resolution procedure should apply”.

As I say, the committee approached this with considerably more logic and power than I was planning to bring to it.

23:15

Amendments 74, 75 and 76 regard matters on which I rather doubt there will be sympathy from the Government Front Bench, given the debate so far. They would provide for a 72-hour time limit on the detention of vulnerable people, or seven days with ministerial authorisation. I remember some years ago a meeting chaired by a very senior MP who had been a Minister. She argued how important it was to have ministerial authorisation in sensitive and arguably unusual cases because it ensures that Ministers apply their minds to the individual’s real situation.

Pretty much everyone has been through what led to flight and the experience of that flight—people must be vulnerable. There is a definition of vulnerability in Amendment 76, and I think it would be hard to argue that anyone in the list is not vulnerable and therefore in need of appropriate treatment.

Amendment 75 would require the Secretary of State to provide to the tribunal all relevant—which I realise now has become quite a topical term—information they have on an individual when there is an application for immigration bail or a bail hearing.

Amendments 76B and 78A would restrict the detention of potential victims of slavery and trafficking. We have already in this Committee spent some time on reasonable and conclusive grounds, and that a victim or potential victim can be referred only by a first responder; there is no self-referral. We have also spent time on the very particular needs of potential victims, including those who have reached the first stage of a “reasonable grounds” decision.

The detention of this already vulnerable group increases the risk of retraumatisation and there is a risk to their long-term physical and mental health. On Monday, the noble Lord, Lord Alton, talked about the fact that victims must be identified because that enables them to be supported. In turn, as the noble and learned Baroness, Lady Butler-Sloss, has referred to several times, that affects the willingness and ability— ability is important too—to engage in investigations and prosecutions. This group of people is very much at risk of retrafficking and further exploitation, and needs the protection that these amendments put forward.

[The Lord Bishop of Southwark]

My Lords, I speak in support of Amendments 59, 63, 64 and 67 which, as has been demonstrated, have strong support from all quarters of this Chamber. It was the intention of the right reverend Prelate the Bishop of Durham to speak to these amendments but he is unable to be in the Chamber tonight.

I believe that the strength of opposition to any change in the current detention limits for both accompanied and unaccompanied children is because it is one of the most alarming and unedifying provisions in the Bill. Ministers have set out what they see as the need to detain children for immigration purposes in order to ensure that we do not inadvertently create incentives for people smugglers to target vulnerable individuals. Were this the case, then there would be a case for considering some sort of remedy. However, yet again we have been provided with no evidence that this is the case.

Building an asylum system with deterrence diffused throughout, as described by His Majesty’s Government, has led to this inappropriate proposal to restart detaining children, potentially for an unlimited period. As the noble Baroness, Lady Mobarik, said, it was a Government led by the party currently in office who took the brave decision to end the routine detention of children. That was against significant departmental pressure to retain the practice. How have we arrived, just 10 years later, at the conclusion that the well-being and welfare of children can now be sacrificed in consequence of the need to control migration?

In a rare admission to an evidential base for policy, on Monday the Minister referred to most persons deemed children in these categories being around the ages of 16 and 17. I accept his assertion on this point. However, as was said then, some children as young as 10 are involved.

The noble Baroness, Lady Mobarik, elegantly set out the impacts of detention of children. Studies show that the inescapable institutional nature of detention is traumatic for children and detrimental to the child’s physical and mental development. The Government are fully aware of the damaging impact of detention on children. I quote from one small section of the Home Office’s Assessing Age guidance, published only this March:

“Failure to adhere to the legal powers and policy on detaining children can have very significant consequences, for example … detention can be extremely frightening for a child, with their perception of what they might experience potentially informed by previous negative experiences of detention”.


It needs to be said explicitly that the Government will be sanctioning an intolerable level of emotional distress for the most vulnerable children. Understandably, a child will ask themselves, “What must be wrong with me to have been subjected to such conditions?”.

The Prime Minister stated that the Government’s objective behind the Bill is not the detention of children. None the less, that is what the Bill does. Given the Prime Minister’s just objective, why has the 2014 requirement that child detention be for the shortest time possible been expressly removed? In the year to March 2023, more than 8,000 children entered the UK who would meet Clause 2 conditions and who therefore could be detained indefinitely. In the first three years of the Bill’s operation, this may mean that up to 25,000 children will be deprived of their liberty. Should the deterrent effect of the Bill—about which we currently have no modelling whatever—fail, surely the 2014 requirement must be retained.

The Home Secretary bears a legal duty to safeguard children. Home Office guidance makes clear that this duty requires a demonstration of fair treatment that meets the same standard that a British child would receive. Would we tolerate the Bill’s proposals for our own children or grandchildren?

I welcome the amendments made in this area in the other place, but they do not go far enough. Legislating for the option to place limits on detention and for these limits not to be specified in the Bill is simply not adequate. It is an area that cannot remain entirely at the discretion of a Secretary of State, and children must have a means of challenging the lawfulness of a decision. Also, there have been no equivalent provisions for children within families. Why is one child different from another? Children will be detained after they have fled unimaginable horrors at home or been trafficked against their will. Children will be born in detention and others will have their futures shaped by it. It is the hope on these Benches that we are better than this and know what is right, having banished this immoral practice before. It will take real courageous leadership to change course, but we must. There is concern among my brother and sister bishops about the state of the nation’s soul if we tread so easily down this path.

[Lord Alton of Liverpool (CB)]

My Lords, that was a powerful intervention by the right reverend Prelate the Bishop of Southwark, whom it is a privilege to follow. I pick up a point he made a few moments ago about the amendments that were passed on Report in another place. Like him, I welcome those amendments but do not believe they go far enough. Nevertheless, the House of Commons recognised in those amendments that the power to detain unaccompanied children under the Bill should be exercised only in the circumstances specified in regulations made by the Secretary of State. Those regulations may include a time limit on such detentions, but the Bill neither requires nor establishes what other restrictions on detention will be put in place.

This is why the point that the noble Baroness, Lady Hamwee, made about the use of the affirmative resolution is so important. As things stand, the House of Lords Delegated Powers and Regulatory Reform Committee was right to say that, given the importance and the sensitivity of the subject matter, if regulations are made concerning the detention of children, the affirmative resolution procedure should apply. I hope that, when the Minister responds, he will deal specifically with that point and perhaps discuss with us how Clause 10 might be amended to take into account what the Delegated Powers and Regulatory Reform Committee suggested.

I turn now to the substantive points made in the wonderful speeches by the noble Baronesses, Lady Mobarik and Lady Helic, from the Conservative Benches. I hope that the Government will take into account the arguments that they have placed before your Lordships tonight. There is an echo of what they said in the evidence from the UK Committee for UNICEF, to which I referred in an earlier intervention, which said this about Clause 10, permitting the detention of children both unaccompanied and in families:

“This is not compatible with international standards and also risks undermining the great progress that the UK has achieved in working to end immigration detention of children since 2010”.


That point was made eloquently by both noble Baronesses, who do not want to see the clock turned back.

Whatever limits on the detention of children are made in regulations issued by the Secretary of State, they are unlikely to be sufficient to meet the requirements of the United Nations Convention on the Rights of the Child. Article 37(b) of the convention establishes the general principle that a child may be

“deprived of … liberty … only as a … last resort and for the shortest … period of time”.

The UK Committee for UNICEF says:

“Two relevant UN Committees have stated that the possibility of detaining children as a measure of last resort … is not applicable in immigration proceedings as it would conflict with the principle of the best interests of the child and the right to development … The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has stated that ‘within the context of administrative immigration enforcement … the deprivation of liberty of children based on their or their parents’ migration status is never in the best interests of the child, exceeds the requirement of necessity, becomes grossly disproportionate and may constitute cruel, inhuman or degrading treatment of migrant children’”.


The power to detain unaccompanied children pending removal or a decision on whether to grant them leave to remain would no longer be subject to the 24-hour time limit and other protections currently provided in Schedule 2 to the Immigration Act 1971. The Refugee and Migrant Children’s Consortium, referred to by the noble Baroness, Lady Lister, noted that this time limit was established by law

“because widespread evidence showed the long-lasting damage that detention has on children’s lives”.

The Government have stated that the detention of unaccompanied children will be

“for the shortest possible time in appropriate detention facilities with relevant support provisions in place”.

In an echo of what the noble Baroness, Lady Brinton, said earlier, I simply press the Minister to say what that word “appropriate” actually means. Please spell it out, because it has no definition as things stand and we are being asked to agree to something pretty awesome in this Bill tonight. That is why the speeches by the noble Baronesses, Lady Mobarik and Lady Helic, are so important and the Government should take proper note of them.

23:30

[Baroness Butler-Sloss (CB)]

My Lords, at this hour, I do not propose to repeat anything that has been said, so splendidly and excellently, in relation to children, save to say that it is good news that, as the Minister told us, there are no unaccompanied children currently being detained. But that does not mean that they will not turn up next week, and there will certainly be unaccompanied children in the future.

I will say something very briefly about Amendments 76B and 78A on modern slavery from the noble Baroness, Lady Hamwee. I refer to my involvement in various aspects of modern slavery, which I set out earlier. I am very concerned, because it is intended that victims of modern slavery who have got through the first part of “reasonable grounds” ought, under the NRM, to be given the appropriate support. The support provided when they get to that stage of the NRM is generally very good, but none of it, as far as I can see, would be available to those detained by the Home Office under the Bill. That would be a huge deprivation to people who, by definition as having been trafficked, and likely to have been trafficked as well as enslaved, will have already suffered very greatly. This is really an extraordinary and another very cruel move of this Government.

[Baroness Sugg (Con)]

My Lords, I will speak briefly in support of Amendment 59 and its accompanying amendments. We have heard from many tonight about the impact that detention has on children; I do not need to repeat that. We heard on Monday from my noble friend the Minister, making the case against creating loopholes in this legislation. I understand his reasons for that, but, like the group that follows, this amendment is about detention and not the other powers in the Bill. We also heard on Monday from the Minister that we cannot evidence what is yet to happen. Of course we cannot, but we can look at what has happened before in this area. When routine child detention was ended in 2011, there was no proportional increase in children claiming asylum.

We all remember the situation before the current protection was in place, in Yarl’s Wood and elsewhere. I remember the campaign back in 2010, which garnered support from hundreds of parliamentarians and parliamentary candidates across the political and professional spectrum. I remember the pledges of all political parties to end child detention if elected, and I remember the then Prime Minister, David Cameron, delivering on that commitment. There remains widespread cross-party support for not returning to child detention and for maintaining the status quo of the current protections.

At Second Reading, four weeks ago today, my noble friend the Minister said that later in the passage of the Bill the Government would set out the new timescale under which children may be detained. That is very much welcome. It is clear from tonight’s debate that that detail is needed. I hope that this report will be simpler and quicker to produce than the oft-raised impact assessment. Is there any update on when this timescale will come, and can my noble friend confirm that we will see it before Report?

The troubling situation that we are seeing in our immigration and asylum system—the small boats, the backlog in processing, and the lack of broader safe and legal routes—was not caused by the lack of detention of children, and nor will it be solved by reversing our long-standing policy against child detention. I hope that my noble friend the Minister will consider accepting these amendments.

[Lord Scriven (LD)]

My Lords, I will speak to Amendments 60 and 65 in my name. I thank my noble friend Lord German and the noble Baronesses, Lady Lister of Burtersett and Lady Bennett of Manor Castle, for adding their names to these amendments.

Because of the lateness of the hour, I will not add to the very powerful speech by the noble Baroness, Lady Mobarik, and give all the reasons why increasing child detention time limits is a bad thing to do. However, I want to go back to what so many noble Lords have asked during this Committee stage: where is the evidence that this is required? The Government have not given any evidence or any reason why 24 hours-plus is required. Since the time limits for unaccompanied children were introduced back in 2014, there has been no empirical evidence and no indication of problems that have arisen which have caused either a pull factor or a push factor for child migration to this country. What is the problem? For a change of policy of this significance, which affects some of the most vulnerable children in the world, the scale of the problem and what problem this will solve have to be put before this House.

We could make the comment that so many noble Lords have, and which I am sure the Minister might: in due course, it will be in the impact assessment. However, the real issue is this. When the Minister stands up at the Dispatch Box, the reason and evidence for this, and the problem it is going to solve, need to be placed before your Lordships, otherwise we cannot in any conscience extend the detention limits.

It was a great part of our history when the Deputy Prime Minister in the coalition Government, Nick Clegg, insisted that children, for immigration purposes, should not be detained, and the Conservative partners in that coalition Government agreed. Noble Lords can see that nothing has changed, so the Minister has to explain what the problem is, what has changed and what problem this will solve.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the noble Lord, Lord Scriven, and to speak specifically to the amendments in this group to which I have attached my name and to the general tenor of this. I did consider not rising to speak at all, because the incredibly powerful speech of the noble Baroness, Lady Mobarik, and her proposition that the words “detention” and “children” do not belong in the same sentence, can be said to sum up all of this debate.

However, I did want to give voice to someone else in this debate—the voice of a nine year-old who was held in immigration detention previously in the UK before the laws were changed. When asked how detention made her feel, this nine year-old said very simply, “Sad and angry. Feel like screaming or breaking something”. That is a nine year-old, talking about the kind of experience that we could again be subjecting children to in this country if the Bill goes through.

To put that in terms of a 2009 briefing paper from the Royal College of GPs, the Royal College of Psychiatrists, the Royal College of Paediatrics and Child Health, and the Faculty of Public Health:

“Reported child mental health difficulties include emotion and psychological regression, post-traumatic stress disorder … clinical depression and suicidal behaviour.”


A more recent paper, published in 2023 by Tosif et al, entitled Health of Children Who Experienced Australian Immigration Detention, said it showed devastating impacts on children’s physical and mental health and well-being and on their parents’ parenting capabilities. I wanted to allow that voice to be heard and to share that medical reference.

I just want to make one final reflection. There is a hashtag I use on Twitter quite often, #CampaigningWorks. Sometimes people say, “Well, it should have worked indefinitely. Why do we have to fight this same battle again?” I think that what the Government have got this evening is a very clear message that this battle has been fought before. We have learned a huge amount and got all the evidence from last time, and it is going to be fought again, even harder, from all sides of your Lordships’ House, to stop this element of child detention and to stop this Bill going through.

[Lord Coaker (Lab)]

My Lords, it is a privilege to follow a number of the contributions to this debate. I shall concentrate on Amendments 59, 63, 64, and 67 by the noble Baroness, Lady Mobarik. These, along with some others, are the most important amendments in this group, and we support what she has said.

I am a proud Labour politician, but I am not someone who thinks a Conservative Government have never done anything that deserves recognition or praise. The Modern Slavery Act is one such thing; the noble and learned Baroness, Lady Butler-Sloss, and I do a lot of work with respect to modern slavery, and we know that to be the case. Another, under the prime ministership of David Cameron, was the ending of child detention for immigration purposes. That Government —to be fair, they were a coalition Government—deserved an awful lot of credit for that, since it was an affront to our country that it was happening in the first place.

So it is a great surprise to us to see this Government, in their desperation to do something about the small boats crossing—which we all want to see something done about—driving a coach and horses through that. I would have thought they would have said, “This is something we are proud of. This is what we stood up for. Whatever measures we take to try to deal with small boats, we will not abandon that principle”. I know the Minister will say that the Government made a concession in the other place and came forward with a regulation-making power that will allow exceptions to be made and so forth, but that is not good enough.

The noble Baroness’s amendments are supported by the right reverend Prelate the Bishop of Southwark, my noble friend Lady Lister and many others, and I hope the Government listen. Whatever else we would wish to see done in order to tackle the problem that we face with respect to small boats crossing the channel—and there is a problem—I do not think any of us want to see children used as one of the ways of doing that. To be fair, I do not believe the Government would wish that either, but the fact is that the legislation as it stands means that unaccompanied children will be detained, and most of us find that unacceptable. That needs to change. We need to go back to the situation that existed before, as suggested by the amendments by the noble Baroness, Lady Mobarik.

I have a specific question for the Minister. Many of us received the briefing from the Refugee and Migrant Children’s Consortium, which says:

“If the Government’s intention is to detain and remove those arriving on small boats, then more than 13,000 children may face detention annually under this government proposal”.


Is it wrong? If so, it is incumbent on the Minister, if not now, to look at the way in which the organisation has arrived at that figure and tell us why it is wrong. Thirteen thousand children annually facing detention under the Government’s proposals is a significant number of children.

If that figure is wrong—this goes back to the problem of the impact assessment—then what figure are the Government using? The Minister says, and the noble and learned Baroness, Lady Butler-Sloss, referenced this, that there are no unaccompanied asylum-seeking children in detention at present. What assumptions are the Government working on here? They must have some figures somewhere for their expectation of the number of children who will be impacted by the proposed legislation as it stands. It would be helpful for us all to know what the Government’s assumption is of the number of unaccompanied children who may be detained as a result of these measures. Presumably they have scoped out the regulations that may be necessary which the Secretary of State may pass in future, so what is the number that the Home Office is working towards?

Secondly, what is the number of children who would be detained under the measures as currently drafted in this Bill who are with a family? I think it would be extremely helpful to all of us to have some sort of understanding of the number of children the Government are expecting their proposals to impact.

We have heard movingly from the noble Baronesses, Lady Mobarik and Lady Helic, and the right reverend Prelate the Bishop of Southwark about all the moral reasons for which we should not proceed with the Bill as it is currently laid out in respect of children. I think that the country would be in a situation where it would say to our Government that, whatever they do to control small boats, not to do it at the expense of children.

23:45

[Lord Murray of Blidworth (Con)]

My Lords, Clause 10 is an integral part of ensuring the success of this Bill, both as a deterrent and as a means of ensuring that the Home Secretary can comply with the duty to make arrangements for removal. The statutory powers to detain are spread across several different pieces of immigration legislation, such as the Immigration Act 1971 and the Nationality, Immigration and Asylum Act 2002. The provisions in this clause create new powers that will enable the detention of illegal migrants to establish whether the new duty to remove applies and to promptly remove those eligible from the UK. Many of the amendments in this group seek to limit these detention powers in one way or another, impacting our ability swiftly to remove those to whom the duty applies.

Amendments 58C, 58D, 63A and 63B, tabled by the noble Lord, Lord German, probe the threshold for detention and in effect seek to raise it by replacing the current test based on an immigration officer or Secretary of State suspecting the relevant matter with a test that requires an immigration officer to have “reasonable grounds for suspecting.” To deliver the objectives of this Bill, our detention powers need to enable detention of illegal migrants to ascertain whether someone falls within the duty to remove, and these amendments seek to reduce our ability so to do.

The issue of time limits is the subject of Amendments 60 and 65, tabled by the noble Lord, Lord Scriven, and Amendments 59 and 63 tabled by my noble friend Lady Mobarik and co-signed by my noble friend Lady Helic. The detention powers in the Bill are fundamental to our approach, and here, as elsewhere, we need a robust and uniform scheme that broadly applies to all and does not allow the system to be gamed, for example by adults pretending to be children, or provide scope for the people smugglers to exploit any exceptions or carve-outs. The Bill will create new detention powers specific to all migrants subject to the duty to remove being introduced in this Bill. These new powers will not be time-limited. However, in line with our other existing immigration detention powers, detention will be limited to a period of time that is reasonably necessary for the statutory purpose to be caried out. The new detention powers will not be subject to the same statutory limitations as existing detention powers to ensure the power can apply more widely.

We recognise the particular vulnerability of unaccompanied children, and therefore the Bill provides that the statutory detention powers may only be exercised to detain an unaccompanied child in circumstances prescribed in regulations by the Secretary of State, such as, but not limited to, for the purpose of family reunion or where removal is to a safe country of origin. We will set out, in due course, having reflected on debates in this House and the other place, a new timescale under which genuine children may be detained for the purposes of removal without judicial oversight—

[Lord Coaker (Lab)]

Will those regulations be available, even in draft form, before Report?

[Lord Murray of Blidworth (Con)]

I will certainly take that request back to the department.

Along with a new timescale under which genuine children may be detained for the purposes of removal without judicial oversight, the Bill will also allow the Secretary of State to make regulations specifying time limits to be placed on the detention of unaccompanied children for the purpose of removal, if required. I would remind my noble friends Lady Mobarik, Lady Helic and Lady Sugg that unaccompanied children are not subject to the duty to remove and the power to remove them will be exercised only in the limited circumstances we have already described. For the most part, unaccompanied children will not be detained under the provisions of the Bill but will instead be transferred to local authority care—that care which the Committee has broadly agreed is the correct place for these children to be located.

In answer to the question of the noble Lord, Lord Coaker, I do not recognise the figure of 13,000 detained unaccompanied children in the NGO report to which he referred. Those statistics did not of course include any allowance for the deterrence effect of the measures in the Bill.

Amendment 73, put forward by the noble Lord, Lord German, seeks to introduce time limits on detention that apply at large, not just to detention under the powers conferred by the Bill. An absolute bar on detention of all children and a 28-day time limit on detention of adults would significantly impair the effectiveness of our enforcement powers. Such a time limit is likely to encourage individuals to frustrate immigration processes to the point where the time limit is exceeded, necessitating their release, which would then significantly inhibit our ability to remove those who have no right to be here and are subject to the duty. I agree that immigration detention cannot, and should not, be indefinite; as we will come on to with later clauses, the legislation places clear limitations on the duration of detention and provides for judicial scrutiny of continued detention. We judge the existing safeguards provided for in respect of existing and new detention powers to be sufficient.

Amendments 61B and 64C, tabled by the noble Baroness, Lady Hamwee, relate to the recommendations of the Delegated Powers Committee. I am grateful for the work of the Delegated Powers Committee in its careful scrutiny of the Bill. We are considering the report, published just before the Whitsun Recess, and will respond ahead of Report stage.

Turning to Amendments 74, 75 and 76, which relate to the detention of vulnerable persons, I can assure the noble Baroness, Lady Hamwee, that the existing adults at risk policy, which I discussed earlier, will be updated to take account of the provisions in the Bill, and will act as a safeguard when detention decisions are made in respect of such persons. This statutory policy requires that evidence of a person’s vulnerability be balanced against immigration factors when considering whether detention is appropriate in their particular case. Finally, I remind the noble Baroness that under the terms of Section 59 of the Immigration Act 2016, revisions to the statutory guidance must be laid in draft before each House and then brought into force by regulations subject to the negative procedure, so there will be an opportunity for this House to scrutinise the necessary changes.

There are no exemptions from immigration detention for any particular groups of people. Amendment 76B, again tabled by the noble Baroness, Lady Hamwee, seeks to create an exemption to immigration detention for potential victims of modern slavery. When decisions are currently made regarding detention or continued detention, potential victims of modern slavery are considered under the existing adults at risk in immigration detention policy.

To sum up, the Government recognise that unaccompanied children are particularly vulnerable. That is why we amended the Bill in the other place to place limitations on their detention under the powers conferred by the Bill. For all others caught by the duty to remove in Clause 2, we believe it is appropriate for the Bill to provide for a single legislative framework for their detention, with tailored provision being made in our adults at risk statutory guidance. On that basis, I invite the noble Lord, Lord German, to withdraw his amendment.

[Lord Coaker (Lab)]

Before the Minister sits down, can I clarify that the 13,000 figure was not just in respect of unaccompanied children? It included families with children.

[Lord Murray of Blidworth (Con)]

I am grateful for that clarification.

[Lord German (LD)]

My Lords, it has been an interesting debate in which it appears there has been one speaker against and everybody else in favour of changing the Government’s proposal.

To sum up the discussion, with the exception of the Minister, the key issues have been the impact of detention on children, that this is a backward step, that it is not in line with the United Nations Convention on the Rights of the Child and that no evidence is given of a sufficiently robust nature to state the objectives of these clauses. To sum it up in a single phrase, “We are going to lock children up to deter the boats”. The rationale of locking up children has just been put to one side. It is a backward step. Therefore, I am sure we will return to these matters at the next stage of the Bill. In the meantime, I beg leave to withdraw my amendment.

Amendment 58C withdrawn.

Amendments 58D to 67 not moved.

Amendment 68

Moved by

[Baroness Lister of Burtersett]

68: Clause 10, page 17, line 18, leave out from “paragraph” to the end of line 19 and insert “(a) of the definition of “relevant detention power”, after “paragraph 16(2)” insert “, (2C) or (2D)””
Member's explanatory statement
The effect of this amendment is that section 60 of the Immigration Act 2016 (which limits the detention of pregnant women normally to 72 hours under existing powers of immigration detention) will apply to the new powers of detention created by Clause 10 of the Bill.

[Baroness Lister of Burtersett (Lab)]

My Lords, I will also speak briefly to Amendment 70, which is also in my name. Before I start, I wish to put on the record my protest at the fact that we are debating these important issues after midnight. It is disgraceful.

[Noble Lords]

Hear, hear!

[Baroness Lister of Burtersett (Lab)]

I am very grateful to the right reverend Prelate the Bishop of Gloucester, who sends her apologies that she cannot be here, but who asked me to underline her strong support. I am grateful to the noble Baroness, Lady Gohir, for her support for both amendments, and the noble Baroness, Lady Sugg, and my noble friend Lady Chakrabarti for each signing one of them. I am grateful to Women for Refugee Women and Medical Justice for their briefings on the amendments, but I feel we really cannot do them justice at this hour.

Amendment 68 does no more than restore the status quo ante, restricting the detention of pregnant women to 72 hours, extendable up to a week with ministerial authorisation. This restriction was introduced by the Immigration Act 2016 thanks to the strong opposition in your Lordships’ House to the detention of pregnant women.

Prior to that, there was no time limit and, although policy stated that pregnant women should be detained only in exceptional circumstances, in practice they were all too often detained in far from exceptional circumstances, and often for long periods. The Bill would return us to those dark days.

The government-commissioned review of the welfare of vulnerable people in detention by Stephen Shaw, a former Prisons and Probation Ombudsman, recommended the absolute exclusion of pregnant women from detention. That formed the basis of an amendment that I tabled in your Lordships’ House, which received strong support right through to ping-pong. Eventually, we accepted the 72-hour limit compromise proposed by the Government. In her Statement explaining it, the then Home Secretary Theresa May stated that

“the Government are clear that pregnant women should be detained only in exceptional circumstances”,

and that to achieve a balance

“with the need to maintain a robust and workable immigration system … This new safeguard will ensure that detention for pregnant women will be used as a last resort and for very short periods”.—[Official Report, Commons, 18/4/16; col. 12WS.]

In his review, Stephen Shaw cited evidence from the Royal College of Midwives and others but explained that he had

“not sought further evidence that detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn children. I take this to be a statement of the obvious”.

At the risk of stating the obvious, it is worth recalling that, during the 2016 debate, a number of noble Lords with medical experience voiced serious concerns about the impact of detention, not just on pregnant women but on their unborn babies. In particular, my noble friend Lord Winston drew attention to the science in which he himself was involved, which

“tells us clearly that the foetus at certain stages during pregnancy is extremely vulnerable to the environment of the mother”.

He warned that if a pregnant woman’s

“stress hormones … are raised, the effect on the foetus may be profound”,

and that

“the Government need to recognise”

their potential responsibility

“for a heritable effect on that child and possibly even on the grandchildren”.—[Official Report, 10/5/16; col. 1667.]

Today, the Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives, the BMA and a range of maternity and refugee organisations have warned of the serious risk of harm that indefinite detention could create for pregnant women and their babies. The Children’s Commissioner has expressed support for this amendment.

The Independent Advisory Panel on Deaths in Custody, which I mentioned earlier, wrote to the Home Secretary on 17 March. Having expressed general concern about the increased risk of suicidality as a result of the extension of indefinite detention, it asked whether the Home Office had carried out a full assessment of the risks linked to the indefinite detention of pregnant women as well as children, and whether it would publish that assessment. More than two months on, no reply has been received. No doubt it will be sent in due course, so perhaps the Minister can provide an answer now and remind the Home Secretary that a proper reply is due to the panel.

In his follow-up review, Shaw noted that the introduction of the time limit had led to a welcome reduction in the number of pregnant women detained, a trend that official figures show has continued; we are now talking about single figures, compared with 99 in 2014. Why are the Government going back on their own policy?

At Second Reading, in response to concerns raised from around the House, the Minister stated that

“to date, there have been very few pregnant women in the small boats”,

yet to exclude them from the detention powers

“would only serve to incentivise the people smugglers to”

put more

“pregnant women … into flimsy boats”.—[Official Report, 10/5/23; col. 1924.]

Similarly, in a Commons Written Answer, the Immigration Minister warned against creating

“perverse incentives for evil people smuggling gangs to target particularly venerable groups”.

Echoing the ECHR memorandum, he further justified the move with reference to “appropriate accommodation” and “healthcare provisions”. That ignores not only the evidence on the inherent stress for pregnant women of being detained, which even the highest-quality healthcare would struggle to mitigate, but the evidence from organisations on the ground that antenatal and other healthcare in immigration detention is often very poor.

The Doctors of the World advisory group of people with lived experience of the asylum system raised particular concerns about standards of nutrition in detention centres for pregnant women and their unborn babies. The equality impact assessment bizarrely argued that because pregnant women could be considered more vulnerable, the removal of restrictions over their detention advances equality of opportunity, because it reduces the risk of their exploitation by people smugglers. This is Alice Through the Looking Glass thinking. Moreover, there is no evidence—that word again—that the 2016 legislation incentivised pregnant women to seek asylum, and the Minister himself acknowledged that there had been very few in the small boats drawn by the prospect of limits on their detention. Are the Government really willing to risk the health of pregnant women and their unborn babies on the basis of a theoretical fear of incentives, or “gaming the system”, as the Minister put it, for which there is no supporting evidence?

I turn to Amendment 70, which would protect children as well as pregnant women against the use of force, be it through the laying of hands on a child or pregnant woman or the use of restraint equipment to effect detention or removal. Again, the rationale for this amendment is the harm that the use of force can do to particularly vulnerable groups, the numbers of whom are likely to increase as the Bill’s removal of detention restrictions becomes law. According to Medical Justice, citing the Royal College of Midwives, pregnant women are at particular risk of developing serious conditions if subjected to the use of force, with implications for their unborn babies. It also cites the Home Office’s own use of force guidance, which acknowledges the serious physical and emotional harm that the use of force might do to children.

Current Home Office guidance does in fact place clear restrictions on the use of force on pregnant women and children. However, this policy was withdrawn for a period and was reinstated only following legal action. In practice, Medical Justice still sees disturbing evidence of the misuse of force in both detention and removals. It also quotes His Majesty’s Chief Inspector of Prisons’ recent report on short-term holding facilities, which gave examples of what it described as disproportionate, unacceptable and inappropriate use of restraint, including handcuffs on children. In his report published yesterday, he noted, depressingly, that:

“Across all three sites we saw no evidence of scrutiny or governance of the use of force or of lessons learned from poor practice”.

Home Office policy states that force should be used on children and young people only where it is necessary to prevent harm to the child or any individual present. Can the Minister give a commitment that this will continue to be policy? I ask because the fact sheet on the Bill and children suggests that force might be used on children if completely necessary, rather than only to prevent harm. Moreover, the fact sheet goes on to state:

“Using force on children in family groups may unfortunately be necessary if a family is resisting removal”.

But the use of force on a child to effect removal is not currently allowed. Will the Minister please explain why it will now be deemed acceptable to use force against children in circumstances where it has not previously been allowed under Home Office policy? This amendment simply puts into the law what is already supposed to be part of government policy, thereby creating a more robust statutory protection for two particularly vulnerable groups. I hope, therefore, that the Government will accept it.

Returning to Amendment 68, I fear that the Government’s obsession with deterrence, such that they intend to make life as grim as possible for all those who seek asylum in the UK through irregular means—not just small boats—regardless of vulnerability, means that they have lost all sight of humanity. I implore the Minister to think again and accept what is really a very small amendment but one that could make all the difference to the lives of pregnant women and their unborn children. I beg to move.

[The Lord Bishop of Southwark]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Lister, who has expertly outlined why these amendments are needed. My good friend the right reverend Prelate the Bishop of Gloucester has added her name in support of Amendments 68 and 70, and regrets she is not able to be here to give her support in person. I share her concern about the impact of detention on pregnant women in particular, impact which we know is considerable. Others will rightly draw attention to the impact on children, and the suggestion of the use of force against either group is unspeakable. His Majesty’s Inspectorate of Prisons advises that there

“is no safe way to use force against a pregnant woman, and to initiate it for the purpose of removal is to take an unacceptable risk”.

I turn now to Amendment 68, which is a preservation amendment. This simply asks that the Government maintain the status quo. In 2016, the Immigration Act introduced a 72-hour time limit on pregnant women’s detention, which saw the numbers detained drop from 99 in 2014 to just seven in 2021. It is alarming to think that we may see numbers rise, and the consequences are disturbing. According to research by Women for Refugee Women,

“women seeking asylum who are pregnant are an extremely vulnerable group. Many have experienced trauma such as rape, trafficking and torture, and have significant physical and mental health issues”.

I appeal to the Minister to consider also the well-being of the unborn child involved. The Royal College of Midwives has said:

“The detention of pregnant asylum seekers increases the likelihood of stress, which can risk the health of the unborn baby”.


Antenatal care and support provided to women who are detained has often fallen short of the care normally available to pregnant women.

Research by Medical Justice found that in Yarl’s Wood, women often missed antenatal appointments. Some had no ultrasound scans while detained, and women did not have direct access to a midwife and could not request visits. In recent years we have seen the devastating consequences of holding pregnant women in prisons. These facilities, including detention centres, are on the whole not set up to provide the necessary health and welfare oversight. This violates women’s dignity and puts lives at risk. The indefinite detention of pregnant migrant women, who are often extremely vulnerable and the victims of abuse and trafficking, is a very worrying and regressive move. The implication that force may be used against them, and against children, is beyond words. I hope wholeheartedly that the Committee supports these amendments and that His Majesty’s Government give them the consideration they so justly merit.

[Baroness Gohir (CB)]

I thank noble Baroness, Lady Lister, for putting forward Amendments 68 and 70, to which I have added my name. I also support Amendment 76A tabled by the noble Lord, Lord Scriven. Let me address Amendments 68 and 76A first.

I made a strong case at Second Reading as to why pregnant women should not be detained. I followed this up with a letter to the Minister. In the letter, which I sent on 19 May, I acknowledged that the Minister has a difficult job in trying to tackle illegal migration but inquired about the following points. I asked about what the Minister had said in his opening comments at Second Reading. He said:

“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.”—[Official Report, 10/5/23; col. 1781.]


This suggests that there were only a small number of women. However, I asked for clarification to understand fully the numbers. If the number was indeed small, then the number of pregnant women would have been negligible. I therefore asked also for evidence of how many pregnant women had entered the UK illegally and whether there had been sharp rise in the figures. I asked this because if not detaining pregnant women was going to act as a magnet, we would have seen the sharp rise suggested by the Government. I chased up a response yesterday and was informed that a draft letter has been prepared and is going through final checks, and I will be receiving it soon. I wonder whether there could be a response today to my points.

It seems obvious that there are probably only a few pregnant migrant women coming to the UK every year, but of course I am happy to be corrected on that point. If the Government are trying to make a case that not detaining them would act as an incentive for more smugglers to bring pregnant women into the country or act as a magnet, that does not stack up. What assessment has been made to arrive at that conclusion?

00:15

I also cannot imagine what safety risks a few pregnant women will pose if they are housed in the community, so I ask for clarification on the following points. How would pregnant migrant women living in the community make us less safe? It would definitely make them safer. Why is this Government’s response to pregnant migrant women so harsh, disproportionate and cruel?

Detention centres are unhealthy and unsafe environments for pregnant women, as I mentioned at Second Reading. I asked Women for Refugee Women for cases of pregnant migrant women who had been detained prior to 2016. When I read the cases sent to me, I noted the following commonalities. These women were not believed when they said they were not feeling well. They had delayed maternity care. Miscarriage came up, as did poor nutrition. They were given medication without really knowing whether it was suitable for pregnant women. Poor mental health, self-harm, flashbacks and PTSD were mentioned. All of this also impacts unborn children and newborns.

Given the vulnerability of pregnant women and children, I support Amendment 70. Force should never be used to effect detention or for removal. Any use of force, even if it is considered mild, will risk harm to the mother and unborn child because each pregnancy is unique, and there may be pregnancy complications that are not apparent. The use of force risks miscarriage, waters breaking and the risk of infection, premature labour, stillbirth and trauma. It goes without saying that to safeguard and protect children from harm, force should also not be used on them. The only time reasonable force can be justified is to prevent harm to the person themselves or to another person. It should not be done for the purposes of detention and removal.

Your Lordships may be wondering why I am so worried about the use of force. The use of force in law enforcement could potentially include handcuffing, the use of a baton, the use of dogs, the use of irritant spray, body restraints, spit hoods, Tasers, and aiming firearms. The Government have a duty to safeguard the most vulnerable in society, so I hope they carefully listen to our concerns today.

[Baroness Chakrabarti (Lab)]

Good morning, my Lords. I hope all Members of the Committee—it is a large group; larger than usual, for which I give credit to the Committee and to Members opposite in particular—will remember 8 June 2023. I will always remember where I was this morning, and I hope that other noble Lords will too, because this was the morning when we began debating whether detention and force are appropriate for pregnant women and small children.

I am very privileged to follow the noble Baroness, Lady Gohir, with her various well-put medical and other reasons why it is not a good idea to use force against pregnant women. It seems that this is now necessary in the context of debating amendments to the Bill. It would seem that there is the edge of depravity, and then there is the abyss. In the last group, we talked about detention. We now take it to its further conclusion, because in the end, a consequence of detention will sometimes be force. It is as well that we confront that, and confront it in the case of both children and, in this example, pregnant women.

Whatever our views about the basic policy here, I rather agree with the noble Baronesses in the previous group and with the speeches we have just heard that it would be appropriate for the Government to think again about this group of vulnerable people in particular, considering all the reasons that were given. Surely, whatever is said about deterrents and so on, there can be some concession to humanity, please, in relation to children and pregnant women. That will not hurt the signalling and the deterrents and so on. We cannot go on like this—and I do not just mean that we cannot go on at 12.20 am. When we were younger, hey, we used to go on all night, so we can go on all night in here; this is how we get our kicks in the Committee. However, we cannot go on degrading ourselves and our values by suggesting that there is no difference between a child or a pregnant woman and an adult, and that everybody is illegal. We need to make some restraints, just for decency, for our own sake.

[Lord Scriven (LD)]

My Lords, it is ironic that we are talking about detention when the Government Front Bench is trying to detain us here. What we are trying to do is our job of sensibly and calmly dealing with a Bill that has huge potential for the liberty and lives of some of the most vulnerable people in the world. It is absolutely disgraceful that, when the noble Baroness, Lady Chakrabarti, was talking about staying here all night, some on the Benches opposite, including the Government Chief Whip, thought it was funny and amusing. It is not funny and amusing to be told that we have to stay here until goodness knows what time to do our job because the Government Benches wish to rush this through at any cost as a red-wall, red-meat Bill, rather than allowing us the serious job that we have to do as Members of this House. It is an absolute disgrace.

Now that I have got that off my chest, I will speak to my Amendment 76A. It is not a probing amendment but a clear amendment that women who are pregnant should not be held in immigration detention. I see no reason for that. The noble Baroness, Lady Lister, pointed out what the equality impact assessment says on pregnancy and maternity—it is absolutely enlightening:

“Data on pregnancy and maternity in relation to people who enter the UK illegally is not available”.


It is not available—there is no data. They do not know the numbers and therefore they do not know what the impact is. It continues,

“it is therefore difficult to categorically establish whether there will be indirect discrimination”.

It is not just hard to determine whether there is indirect discrimination; because of the lack of figures it is absolutely impossible to determine what the effect will be of the primary part of this legislation and whether it will act as a deterrent.

I am sure that that is what the Minister is going to tell us: that there is no data or evidence available. As the Minister said on Monday, on all the proposals:

“Obviously, as these provisions are not in force, there is no evidence of the impact of these measures. The noble Lord appears to require me to look into a crystal ball”.—[Official Report, 05/6/23; col. 1175.]


When the Minister gets up at the Dispatch Box, if he trots out the ridiculous statement that locking up pregnant women will somehow act as a major deterrent to people coming here, both the equality impact assessment and what the noble Lord, Lord Murray, said on Monday show that that is not the case.

It is for those reasons—the lack of evidence, the lack of understanding of what the impact will be, and, as other noble Lords have said in the debate, the impact it will have on both the pregnant woman and the child—I believe there is no case in a modern, civilised country to have an immigration policy position of putting pregnant women in detention.

[Lord Alton of Liverpool (CB)]

My Lords, in 1979, when I was a young Member of another place, the then Conservative Government regularly kept us there all night. When you are younger, you are quite happy to do that but I suspect it would be better—and knowing how reasonable the Leader of the House and the Government Chief Whip are—if we could schedule our proceedings to include at least one extra day to consider this very important Bill, but also maybe to have a morning sitting if necessary to enable those of us who are not quite as young as we once were to ensure that we can focus properly on these very important questions.

I made common cause with the noble Baroness, Lady Lister, in 2016 and it was to the credit of your Lordships’ House that, after some ping-pong and debate between both Houses, we were able to ensure that the law was changed to introduce these restrictions on the detention of pregnant women. Similarly, the decisions that were taken about children were to the credit of this House. To see these things being rolled back brings no credit to any of us and I really hope that the Minister, when he goes away from our proceedings tonight and talks again to his officials and to the Secretary of State, will recognise the strength of feeling that has been expressed in the debate already, and that the very important points that my noble friend Lady Gohir made in her excellent speech will be taken into account.

The detention of pregnant women is currently restricted, as we have heard, to 72 hours. That limit would be specifically disapplied in respect of those detained because they are or may be subject to the Clause 2 removal duty. As the Bill stands, a pregnant woman could be detained for any period—I repeat: any period—considered “reasonably necessary”. Prior to 2016, the noble Baroness, Lady Lister, and I argued that it was unconscionable that there was no time limit on immigration detention for pregnant women, leading to some of them being detained for weeks, even months, on end. That, inevitably, put pregnant women and their unborn babies at risk.

The Royal College of Midwives says:

“The detention of pregnant asylum seekers increases the likelihood of stress, which can risk the health of the unborn baby”.


Stephen Shaw, the former Prisons and Probation Ombudsman, mentioned earlier by the noble Baroness, Lady Lister, was emphatic. He said:

“That detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn children … I take to be a statement of the obvious”.


Back in 2016, Medical Justice told Parliament that the level of care for pregnant women

“falls short of NHS equivalence and the National Institute for Health and Care Excellence (NICE) standards”.

Are we seriously going to turn the clock back to those bleak times? Some of the women who will be affected will have experienced barbaric treatment, including rape, torture and trafficking. To forcibly return such women will be traumatic beyond belief for them. It will endanger their lives and the lives of the babies in their wombs, and we have no business doing it. That is why I support Amendment 68, and even at this late hour I hope that many of your Lordships on all sides of the Committee will support the noble Baroness, Lady Lister.

00:30

[Baroness Bennett of Manor Castle (GP)]

My Lords, I begin with an apology to the noble Lord, Lord Scriven, because, had I spotted Amendment 76A, I would certainly have attached my name to it. I judge from its numbering that it was a relatively late arrival. Having addressed the detention of pregnant refugees at Second Reading, I saw that Amendments 68 and 70 had full, cross-party and non-party support—including from the Lords spiritual—so I could not attach my name to them. I certainly would have done so otherwise. The case for all these amendments—certainly for not making things any worse than they are now—has already been overwhelmingly made.

The noble Baroness, Lady Chakrabarti, took us gazing into the abyss; I am afraid that I am going to look even further into the abyss. I have specific questions for the Minister. Throughout these many long hours of debate, we have heard again and again that the Government are determined to remove people with great rapidity—that is, that they are going to detain them for just a few days and then remove them. We have all heard the expressions of doubt about that. I want to ask some questions about the Government’s intentions for the removal of pregnant refugees.

I have looked at the NHS guidance on travelling when pregnant; for the assistance of the Minister, the website is fitfortravel.nhs.uk. It says that flying during the first 12 weeks of pregnancy is risky because of the risk of miscarriage. It says that most commercial airlines accept pregnant travellers up to 36 weeks if it is a single pregnancy or up to 32 weeks if it is a multiple pregnancy if the pregnancy is uncomplicated and the pregnant person is in good health. This advice also notes that, in the post-partum period, the risk of deep vein thrombosis is significantly elevated. My question for the Minister, because I think that it needs to be raised in this context, is this: is it the Government’s intention to remove, presumably by flying, pregnant refugees, risking their health and that of their unborn babies?

[Baroness Sugg (Con)]

My Lords, I have co-signed Amendment 68, which, as we have heard, would keep the existing protection of a 72-hour time limit on the detention of pregnant women for immigration purposes. I appreciate that the Minister will make a similar closing speech to the one for the previous group, but I want to make some different, practical points on pregnant women specifically. I believe that there is a case for special treatment here.

In our debates on previous groups, my noble friend the Minister warned against introducing loopholes that could be exploited. I do not believe that that will be the case here. This is a narrow amendment. It does not seek to exempt pregnant women from the other provisions in this Bill, such as the duty to remove. It simply ensures that their and their babies’ health will not be put at risk by being detained with no time limit.

There is no evidence to support the suggestion that maintaining the time limit will result in more pregnant women crossing the channel. Women’s groups and experts working in this area do not believe that it will increase the number of pregnant women making these journeys, so I do not believe that there will be an incentive effect. I am not really clear on the reasoning behind that argument. I do not think anyone is suggesting that this will incentivise women to get pregnant so that they can claim asylum. Nor will women take the decision to put themselves and their unborn baby at risk of a dangerous crossing and eventual deportation just because they will not be detained on arrival for more than 72 hours.

If the broader measures in the Bill work as the Government intend and people are swiftly removed to another country, we will not see people traffickers seeking out pregnant women to make the crossing, exploiting a loophole, because they will not be exempt from removal. The risk of the very small number of people on whom this will have an impact absconding is very low, given the desire and need for healthcare when pregnant. Further, where there is a real risk of absconding, Section 60 allows for detention to be extended with ministerial authorisation.

Despite the same arguments being made when this issue was debated in 2016, the 72-hour time limit placed on pregnant women’s detention has not had an incentivising effect on women claiming asylum. Unfortunately, the Home Office does not collect specific statistics on the number of pregnant women claiming asylum, but the number of women claiming asylum annually prior to the time limit was about 7,000. This figure has stayed broadly the same post time limit; there has not been any increase.

Secondly, there is the argument that there will be sufficient protection for pregnant women thanks to existing or updated guidance. I do not believe that that will be the case either. The existing “adults at risk” level 3 does provide some guidance but, as we saw before the Immigration Act 2016, with just guidance, pregnant women were being detained on a far more routine basis than they should be.

During the passage of the Immigration Act 2016, the original proposition was for pregnant women to be protected through guidance but ultimately it was recognised that that just would not be robust enough, and we saw the introduction of the time limit. I appreciate what my noble friend the Minister said in the previous group about updating the guidance following this Bill, but the gap between policy and practice was really only closed through the introduction of a clear time limit in primary legislation which reduced the elasticity of or room for interpretation of guidance. This protection should remain in primary legislation.

There is widespread support for this amendment from across this House, from the other place and from organisations such as the End Violence Against Women coalition, which is made up of 143 specialist women’s support services and experts, from Refuge, the largest domestic abuse organisation in the UK, from medical professionals, and from the Royal College of Obstetricians and Gynaecologists. I will not detain your Lordships by reading out their supporter quotes but, believe me, they are very supportive. I am happy to share them at a more appropriate time.

This is a narrow amendment that would impact just a small number of vulnerable women and keep the protection against detention that pregnant women currently have. It would not create loopholes as it would not exempt women from the duty to remove. The known negative impacts of detention on pregnant women outweigh the un-evidenced—and in my view, incorrect—argument that this will incentivise women to cross in small boats.

This amendment is about protecting women, not putting them at further risk. It would maintain current protections that have been widely acknowledged as working well. If my noble friend the Minister still believes the current time limit should be removed, I would welcome an explanation of the specific reasons for that. I ask him to take into account the widespread support for this narrow amendment and to consider its merits ahead of Report.

[Lord German (LD)]

My Lords, this has been another interesting debate in which there has been one side only, and we face a series of debates where we are looking at fact versus forecasting. All of the speakers who have entered this debate in this short and very narrow area of work have been clear about the issues, which are evidenced—the health and well-being of pregnant women, the effect on unborn children, the dangers of restraint, which have been very well explained.

We are in exactly the same position as we were on the last group. We are asked to make a decision in this Committee based on unevidenced forecasting—in fact, we heard the Minister say earlier that he cannot be expected to look into a crystal ball. That is exactly what the Government are doing here, against all the evidence.

If you think about the number of organisations that have been referred to in this short debate, we are not talking about a small, narrow area of influence; we are talking about huge numbers of organisations representing women throughout this country, human rights and every other sphere you can imagine, believing that this is the wrong way to go. It is the wrong way because we do not have any evidence that it will do the job the Government want it to do.

The Government should stop their crystal ball-gazing to which they directed our attention earlier and concentrate on the evidence they have given. If they cannot provide the evidence themselves, listen to the evidence of the world around us.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, one of the major items in the Bill is the extension of the 72-hour detention of pregnant women. Research carried out in Yarl’s Wood in 2014 found women in detention there often missed antenatal appointments, had no ultrasound and did not have direct access to a midwife.

In a government-commissioned review of immigration detention in 2016, Sir Stephen Shaw stated that

“detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn child and I take this to be a statement of the obvious”.

That point was made by the noble Lord, Lord Alton of Liverpool. It was after this that the 72-hour rule was implemented. It was done for a reason, and to undo it would put women and unborn children at risk of serious harm. The actual number of pregnant women in detention is low. There were nine in 2022, so I would argue—and so, I believe, would other noble Lords who have taken part in this debate—that we are talking about a low number of children. The Government’s argument that somehow, the amendments would provide an incentive are difficult to understand.

However, to the women themselves, who are pregnant, it makes a huge difference. That is accepted by experts and by every lobby group that has written to noble Lords regarding this narrow amendment.

If I was to give a prize for the best speech of this group I would give it to the noble Baroness, Lady Sugg. Her speech was very cogent and well argued. On the other hand, the prize for the most impactful speech would go to my noble friend Lady Lister, who gave a powerful and angry speech. She was also very angry that we are having this debate at this time of the morning. I hope that the Minister will hear the unanimity of view that has been expressed by all noble Lords taking part in this short debate.

[Lord Stewart of Dirleton (Con)]

My Lords, this group deals with the detention of pregnant women and the use of reasonable force to effect the detention and removal of children and pregnant women.

Amendments 68 and 76A deal with the detention of pregnant women. Before getting into the specifics, it is worth briefly reiterating some general points made by my noble friend Lord Murray when he responded to the previous group. Our aim is to ensure that no one is held in detention for longer than is absolutely necessary to effect their removal from the United Kingdom. The scheme is designed to be operated quickly and fairly, but holding people in detention is necessary to ensure that they are successfully removed under the scheme. The duty on the Home Secretary to make arrangements for the removal of all illegal entrants, save unaccompanied children, back to their home country or to a safe third country will, we calculate, send a clear message that vulnerable individuals, including pregnant women, cannot be exploited by the people smugglers facilitating their passage across the channel in small boats on the false promise of starting a new life in the United Kingdom. The only way to come to the United Kingdom for protection will be through safe and legal routes. This will take power out of the hands of the criminal gangs and protect vulnerable people.

I am happy to repeat for the benefit of the noble Baronesses, Lady Lister of Burtersett and Lady Chakrabarti, the noble Lord, Lord Scriven, and my noble friend Lady Sugg that we must not create incentives for people-smuggling gangs to target pregnant women or provide opportunities for people to exploit any loopholes. I assure the Committee that pregnant women who have arrived illegally will not be removed from the United Kingdom when, based on medical assessments, they are not fit to travel. I offer that assurance to the noble Baroness, Lady Bennett of Manor Castle.

[Baroness Bennett of Manor Castle (GP)]

Before the Minister continues, can he tell me where that will appear in writing? An assurance in the Committee at 12.43 am, is one thing, but where will that assurance be written down?

[Lord Stewart of Dirleton (Con)]

It will be in Hansard, the official record.

The document from which the noble Baroness, Lady Bennett, quoted, referring to guidance from the NHS website, provides that, with the proper precautions, most women can travel safely well into their pregnancy. However, in any event, we will remove only persons who are fit to travel.

There has never been a complete bar on the detention and/or the removal of pregnant women, such as Amendment 76A seeks to provide. The noble Lord, Lord Alton of Liverpool, referred correctly to the situation as presently advised, with a 72-hour period and a seven-day maximum detention thereafter. In answer to the noble Lord, the right reverend Prelate the Bishop of Southwark, and other noble Lords, that will continue to apply to women who have not arrived illegally on these shores.

Under the Bill, detention is not automatic. The Bill provides power to detain, and the appropriateness of detention will be considered on a case-by-case basis. We expect that a woman who is in the later stages of her pregnancy and who cannot be removed in the short term would not be detained, but instead released on immigration bail. That matter would of course be assessed by the body hearing the application.

00:45

As my noble friend Lord Murray of Blidworth advised the Committee earlier, and in relation to points raised by my noble friend Lady Sugg, we already operate our adults at risk policy for women who are detained in the earlier stages of pregnancy, which recognises pregnant women as a particular vulnerable group. For all cases in which a pregnant woman is being detained for removal, the fact of her pregnancy will automatically be regarded as amounting to level 3 evidence under the adults at risk policy, and the pregnancy will be afforded significant weight when assessing the risk of harm in detention. This means that a woman known to be pregnant should be detained only where the immigration control factors that apply in her case outweigh the evidence of her vulnerability—in this case, the evidence of her pregnancy. Such control factors at level 3 are where removal has been set for a date in the immediate future or there are public protection concerns. While in detention, pregnant women will receive appropriate healthcare provision.

The noble Baroness, Lady Gohir, referred to the letter she has been promised. I am assured that it is in the process of being drafted. It will proceed under the name of my noble friend Lord Murray of Blidworth and will be with her soon.

Along with all other detained persons, it will be open to pregnant women to apply to the First-tier Tribunal for immigration bail after 28 days and it would be open to the Home Secretary to grant such bail at any time. An application for a writ of habeas corpus may be made at any point once an individual is detained. An equivalent procedure operates in Scotland by means of an application for an order for suspension and liberation to the Court of Session.

Amendment 70 would, in effect, prohibit the use of reasonable force to effect the detention or removal of either children or pregnant women. While I recognise the sentiment behind this amendment, we need to recognise that using control and restraint on children in family groups or pregnant women may, unfortunately, be necessary if a family is resisting removal. At the moment, our policy regarding children and pregnant women is that reasonable force may be used to prevent harm to individuals and others. However, we judge it not right that a family can prevent their lawful removal from the United Kingdom simply by leaving a room or by refusing to walk to the appropriate transport.

At this point, it is worth while expanding on what we mean by the use of reasonable force. The expression is fully and widely understood within the legal profession. I understand the concerns being raised here and it may help if I offer more explanation of what is meant by that expression or the use of control and restraint on pregnant women and children. It may involve no more than placing hands on the person; a typical example is what is known as a guiding hold, which may be used safely to escort a person by placing one hand over their wrist and the other on their upper arm.

It is and will continue to be the case that the use of force must be reasonable in the circumstances, must be the minimum amount required, must be an absolute necessity and must be proportionate. Officers are therefore trained to use it as a last resort only when other methods of engagement are not viable.

Again, the noble Baroness, Lady Gohir, in her submission to the Committee, described forms of the use of force which are extreme in comparison with what would be deployed in foreseeable circumstances. If I may, it is somewhat analogous to the discussions earlier on in the context of the detention provisions: we heard what your Lordships had to say about the conscription—I seem to recollect that that was the expression—of shipmasters, train managers and others into the service of the Home Secretary acting in these capacities. It was worth while for my noble friend Lord Murray of Blidworth to remind the Committee that detention can be no more than simply refusing to open doors. Force need not equate with violence. But we judge that it is appropriate that persons should not be able to thwart the immigration system simply by refusing to co-operate.

Where we are reviewing our policies on control and restraint, we will pay particular attention to ensuring that appropriate safeguards are in place, along with suitable training, officer accountability and reporting. Again, I think it is worth mentioning that these control and restraint techniques are in a constant process of review and evaluation, not only by police officers but also by others such as mental health nurses, prison officers, immigration officers and officials such as will receive such training for the purposes of the Bill. We will be consulting the children’s commissioners regarding changes to our current policy.

I conclude by reminding the Committee that the challenge we face in addressing the current levels of illegal entry into the United Kingdom calls for a new and radical approach. That means having to re-evaluate some legislation passed in recent years with the best of intentions. The challenges that we face now are different in kind and scale since Section 60 of the Immigration Act was enacted. Of course, pregnant women must be properly cared for while they are in detention and will be detained only in suitable accommodation with appropriate healthcare provision, but the fact that they are pregnant cannot of itself act as a bar on detention under the Bill. On that basis, I invite the noble Baroness to withdraw her amendment.

[Baroness Lister of Burtersett (Lab)]

My Lords, first of all, I thank all noble Lords who have spoken. All, apart from the Minister, spoke in support of the amendment. I am very grateful to them for staying until this ungodly hour and not allowing the Government to chase them off, in effect, through tiredness. I know that others have not spoken, but I have felt their support anyway. People are nodding, and I thank them. I know that others who cannot stay this late have had to leave.

My noble friend Lord Ponsonby remarked on my anger that we are discussing this at such a ridiculous time. Yes, I am angry about that, but I am also angry because, as the noble Lord, Lord Alton, set out very clearly, we are having to refight the battles that we fought in 2016 at some length in this House and won. It is so depressing to have to put the same arguments yet again, because the Government and Theresa May accepted them then, and we reached a compromise. That is why, although in my heart I agree with the noble Lord, Lord Scriven, because that is what I argued for in 2016, with my head I say that we have to just try to get back to where we were. There is no point trying to go further, I am afraid, although I accept what he said in principle.

I should also note that there are a whole lot of other people here who probably would not normally sit in on our Committee proceedings, and I hope they have learned something. I hope they have learned through having to listen to what we are doing to pregnant women—what their Government are doing to pregnant women. I hope they will think about it. Some of their colleagues on the government Benches might have words, perhaps, afterwards, because as my noble friend said, the noble Baroness, Lady Sugg, made a very powerful case.

I thank the Minister for his response, but it was utterly disappointing. He utterly failed to engage with what his noble friend said about the vacuity of the incentives argument, and he had no other argument to put. There is no case, really, because, as she made clear, that argument does not stand up. It was very depressing and disappointing that there was no case.

I am also disappointed that a number of the questions I asked were not answered. I am not going to press them now— it is nearly 1 o’clock in the morning.

[Lord Stewart of Dirleton (Con)]

I apologise to the noble Baroness. Any oversight was entirely a failure on my part. I will review the record and revert to the noble Baroness in writing, if that is acceptable.

[Baroness Lister of Burtersett (Lab)]

It is perfectly acceptable. I was just going to suggest that the Minister do that. I do not blame him at all, because I do not imagine he is that keen on arguing this out at 1 o’clock in the morning either.

We will return to this at Report—we have to. As a number of noble Lords said, this is a narrow amendment that does not drive a coach and horses through the whole Bill, much as I hate the Bill. It would not cost the Government anything to concede to this amendment before Report, rather than forcing us to come back then and go through the whole thing again, voting for the health of pregnant women and their babies. For now, however, I beg leave to withdraw the amendment.

Amendment 68 withdrawn.

Amendment 69 not moved.

Clause 10 agreed.

Amendments 70 and 70A not moved.

[The remainder of today’s proceedings will be published tomorrow.]

[Continued in column 1509]