Wednesday 7th June 2023
(10 months, 3 weeks ago)
Lords ChamberIllegal Migration Act 2023 View all Illegal Migration Act 2023 Debates Read Hansard Text Watch Debate Amendment Paper: HL Bill 133-III(a) Amendments for Committee (Supplementary to the Third Marshalled List) - (6 Jun 2023)
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.
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.
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?
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.
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.
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.