Free Music Education
(11 months ago)
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Baroness Fleet
To ask His Majesty’s Government what steps they are taking to provide free music education for all children aged five to 14.
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
My Lords, this Government recognise the importance of all pupils receiving a broad and ambitious music curriculum. As set out in the national plan for music education, we expect schools to teach at least one hour of music a week. We have committed £70 million per annum for music hubs until 2025, alongside £25 million for musical instruments. We will consider future funding for the next spending review in due course.
Baroness Fleet (Con)
My Lords, I thank my noble friend the Minister for that Answer and declare my interests as registered, including as former chair of the national plan for music education. The national plan for music education is ambitious, but does it not need to be well funded to succeed? The Department for Education currently provides £76 million a year for music education, but there are nearly 7 million children aged between five and 14 in our schools, all of whom should be learning to play an instrument, sing and many other things besides. We can all do the maths: children from disadvantaged families are missing out. They simply cannot afford to learn to play a musical instrument.
What is the logic of going for growth in the creative sector, which includes music, if there is so little support for the pipeline of talent? When do the Government plan to provide sufficient funds to ensure that children from low-income families can fulfil their potential as musicians and become part of the pipeline of talent for our brilliant conservatoires and orchestras?
Baroness Barran (Con)
I thank my noble friend for her part in chairing the national plan for music education. She will understand much better than I that money is important but not the only thing that allows children from less advantaged backgrounds to participate in music. Every child is offered the opportunity for a range of musical experiences at schools. We have funding for the Music and Dance Scheme, for particularly talented young people who have been identified, of more than £30 million this year. We will also publish more about our funding of the music progression fund shortly.
Baroness Whitaker (Lab)
Did the Minister take note of the report some years ago by Darren Henley, which gave evidence that music education opens a door to all other kinds of learning? Should not all children have this benefit?
Baroness Barran (Con)
I completely agree, which is why all children do have this benefit and why music education is part of the national curriculum from key stages 1 to 3.
Lord Wallace of Saltaire (LD)
My Lords, I declare an interest as the former chair of the VOCES8 Foundation, which is a music education charity. We have found from going into primary schools that a large number of them have no teachers with any musical expertise. If that is the situation, it is difficult to do things such as getting the whole school to sing together, which clearly improves the entire atmosphere, let alone encouraging the more talented people. Are the Government willing to commit to ensure that every primary school has at least one teacher with basic musical training?
Baroness Barran (Con)
I understand the point that the noble Lord makes, but the data for 2021-22 shows that more than 86,000 hours were spent teaching music in secondary schools—I know the noble Lord referred to primary schools—which is more than at any time since 2014-15. The number of teachers has also increased since that date and now stands at more than 7,000, of whom 83% have a relevant post-A-level qualification.
Lord Berkeley of Knighton (CB)
My Lords, the aspirations of the plan are admirable, but surely we need to see less reliance on hubs and more reliance on actual music in schools. The best way to do that is to get music back on the EBacc, of course. I realise that is perhaps a forlorn hope at the moment, but will the Minister tell me how the Government are going to find the right number of teachers, especially those trained to deliver music in schools?
Baroness Barran (Con)
The noble Lord is right that teacher recruitment, along with recruitment in many sectors, is a real challenge at the moment. But we are supporting schools, and I suggest to the noble Lord that maybe it is a both/and: music hubs have an important part to play, as does direct delivery in schools, which the hubs support. The model music curriculum introduced in March 2021 helps support schools in that delivery.
Lord Vaizey of Didcot (Con)
My Lords, I congratulate my noble friend Lady Fleet on her excellent work on the national plan for music education. When we first worked on the first national plan back in 2012, one of the things we did was to incorporate the In Harmony programme conceived by Julian Lloyd Webber, started by the last Labour Government with great foresight and carried on by the Conservative Government. I simply bring to my noble friend’s attention how absolutely outstanding this programme is, particularly in giving children not just a music education but extraordinary life chances in some of the most deprived areas of the country. I urge her to continue to support it as the music education plan develops.
Baroness Barran (Con)
My noble friend is absolutely right and I thank him very much for drawing this to the attention of the House.
Baroness Wilcox of Newport (Lab)
My Lords, in Wales the National Music Service is carrying out a review of the terms and conditions for local authority-hosted music service teachers, commencing this autumn. It will look at whether the lack of teacher retention and pay is a factor in delivering good music education throughout all key stages. Have the UK Government thought of doing something similar in England?
Baroness Barran (Con)
We have just published a national plan for music education, Arts Council England has just carried out a consultation review of our music hub approach and we have published a new model music curriculum, so it is fair to say that this area has received a lot of attention.
Lord Shipley (LD)
My Lords, in an earlier reply, the Minister said that every child has access to a range of musical experiences. Can she confirm that that extends to a right of every child to learn a musical instrument for free?
Baroness Barran (Con)
I think the noble Lord knows the answer to his question. Music lessons are an area in which schools are allowed, with certain restrictions—for example, children who are in care have an absolute right to free musical instrument lessons—to charge if the lesson is at the request of the pupil’s parents.
The Earl of Clancarty (CB)
My Lords, the Minister repeatedly tells us that the EBacc has had no effect on the arts, including music, in schools. How, then, will she account for the fall in GCSE music entries of 27% between 2010 and 2022, and the further expected fall of 12% in the last year?
Baroness Barran (Con)
I encourage the noble Earl to look at both the GCSE and the technical award figures, which have stayed relatively stable at about 8% of the pupil population over the last four years. I also point to our absolutely extraordinary and thriving creative industries which, despite the House’s concerns, appear to be able to recruit just the people they need.
Baroness Fraser of Craigmaddie (Con)
My Lords, dance should be as valued as music in education yet, according to recent research by One Dance UK, over the last decade dance has been marginalised as an educational subject. World-class organisations such as Rambert have produced fantastic resources, such as Rambert CREATE. Will the Minister commit to ensuring the place of dance within the creative arts and the curriculum, perhaps through working with organisations such as Rambert?
Baroness Barran (Con)
I thank my noble friend for her suggestion. The department is very open to working with organisations such as Rambert and is very grateful to them for the work they do. Dance is included within the physical education curriculum and it includes specific requirements at key stages 1 through 3. Schools have flexibility about how they deliver this curriculum, but I would be happy to meet my noble friend and follow up her suggestion.
Baroness McIntosh of Hudnall (Lab)
My Lords, in her last but one answer, the Minister observed that the creative industries do not have any trouble in recruiting. I point out to her that they do. There is a significant skills shortage across the creative industries, which causes considerable concern. She might not necessarily agree, but many people believe that a lot of that is to do with the fact that the arts, and in particular music, are not given the privileged status within our schools that she imagines they should have and tells the House they have.
Baroness Barran (Con)
I apologise if I gave the impression that there are no skills pressures in the creative industries. I just pointed out that our creative industries are world beating and are able to recruit talent in a way that allows them to be so.
General Practitioners: Recruitment and Retention
(11 months ago)
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Baroness McIntosh of Pickering
To ask His Majesty’s Government what assessment they have made of the current state of recruitment and retention of general practitioners.
Baroness McIntosh of Pickering (Con)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper and declare my interest with Dispensing Doctors.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
We acknowledge that there are challenges in growing GP numbers. We are working with NHS England and the profession to explore measures to boost recruitment, address the reasons why doctors leave the profession and encourage them to return to practice. As of March 2023, there were 1,903 more full-time equivalent doctors working in general practice compared with March 2019, and we have a record 4,000 doctors in GP training.
Baroness McIntosh of Pickering (Con)
I have slightly different figures, although I thank my noble friend for his Answer. Since 2015, there has been an 18% increase in the number of patients per GP but a 7% reduction in GPs, with potentially 39% of the GP workforce considering leaving the profession in the next five years. Does my noble friend share my concern about the recruitment and retention of GPs? What urgent action is he going to take to address the workforce strategy for GPs to double the number of medical training places and to ensure that general practice once again becomes an attractive place for doctors to work?
Lord Markham (Con)
I agree with my noble friend that recruitment and retention are key. To clear up the figures, the numbers I gave referred to all doctors working in GP surgeries, including people who have been qualified for five years and are just finishing off the GP element. Within that we absolutely need to increase training numbers. We already have 4,000 doctors in training, which is a record number, but we are looking to grow that. We are introducing specific actions on retention, such as the new changes to pensions.
Lord Hunt of Kings Heath (Lab)
My Lords, plugging the gap in relation to GPs will take many years. The noble Lord will know that in hospitals, specialist and associate specialist doctors have increased in number. Many would like to work in primary care but are prevented by bureaucratic barriers. Do the Government not think that one way to get an immediate injection of doctors into primary care is to get SAS doctors there and to lift the current barriers?
Lord Markham (Con)
I completely agree that we need to look creatively and flexibly. We are on target to deliver 50 million more appointments, which is 10% more each day. That is through recruiting more staff. We have about 29,000 more staff in the GP work space, and that is using them flexibly and creatively.
Lord Stirrup (CB)
My Lords, part of the pressure being experienced by secondary care specialists is as a consequence of inadequate time for appropriate diagnosis by primary care specialists—the GPs. Numbers are, of course, a part of this, but what are the Government going to do about setting targets for consultations with GPs that reduce the pressure on hospitals and see more patients dealt with in primary care?
Lord Markham (Con)
I totally agree; it is all about getting upstream of the problem. I visited an excellent surgery—Greystone House in Redhill—where they are doing exactly that. They are taking their most critical 1% of patients in respect of need and trying to get appointments in ahead of time so that they can move into preventive measures; I absolutely agree.
Baroness Hodgson of Abinger (Con)
My Lords, I understand that often locums are paid more than GPs in practice. How can we reverse this so that we can encourage young doctors to go into GP surgeries, become general practitioners and actually get to know their patients?
Lord Markham (Con)
First, I would agree—I think we all agree—that continuity of care is very important. We absolutely want a career structure that attracts and retains exactly those types of people, so that they feel it is more rewarding, both financially and as a job, to work in such a practice environment.
Lord Allan of Hallam (LD)
My Lords, I expected this Question to be the cue for our weekly reassurance from the Minister about the workforce plan, which will be coming “shortly”, “imminently”, “in the blink of an eye”, or whatever the latest formulation will be. In spite of all the reassurances that he has given about numbers, the stark reality remains that many people up and down the country find it extremely hard to see a GP when they need to, and that has knock-on effects for everyone else, including accident and emergency services. Does the Minister have anything new to offer that might give us some confidence that we will turn the corner in the near future?
Lord Markham (Con)
The primary care plan was a very good example of something new, substantial and backed by £1.2 billion of investment to beat the 8 am morning rush and use technology—which I know the noble Lord is very interested in—to allow people to self-help in a lot of these situations.
Baroness Wheeler (Lab)
The Minister will know that the Health Foundation independent think tank summed up the Government’s recent primary care recovery plan as falling
“well short of addressing the fundamental issues affecting general practice”.
Staff shortages and the sheer number on NHS waiting lists are a key reason for such high demand on GP services. Do the Government accept that, unless they urgently get a grip on waiting lists, the crisis in general practice will only deepen?
Lord Markham (Con)
What we totally accept and believe is that primary care is where a stitch in time saves nine, to take that saying. That is why I believe that the primary care plan is a big step forward. As I said, the fact that we are doing 10% more appointments per day is significant, as is the Pharmacy First initiative that we have announced, which will bring on stream another 10 million appointments a year, allowing people to navigate whether a pharmacy is the best place for them to get treatment, in which case they can go there first. These are all practical plans that are in place and are making a difference.
Lord Singh of Wimbledon (CB)
My Lords, I declare an interest as someone who has children and grandchildren in the medical profession. Would the Minister agree that there is something terribly wrong in the recruitment and retention of doctors when newly qualified doctors from Nigeria are paid more than those in this country when doctors find it easier and more profitable to do locums than stay in a fixed career path; and, finally, when doctors are being inundated with attractive requests from Australia and New Zealand to emigrate to those countries, leaving a dearth in this country?
Lord Markham (Con)
All the things that the noble Lord points towards are covered in our plan for recruitment and retention. The things that we have announced, particularly on pensions—a key reason why people were leaving—were welcomed by the sector and the fact that we have record numbers in training is also a step in the right direction. But, as we freely admit—this is what the primary care plan is all about—a lot more work needs to be done and is being done.
Lord Naseby (Con)
As my noble friend knows, we have an Armed Forces scheme for young doctors to train and they have to commit to five years in the Armed Forces. Is he also aware, as I am sure he is, that Singapore’s health service has a scheme whereby young medics who qualify have to work in the Singapore national health service? At a time when we see an increasing number of our qualifying young doctors going abroad, is it not time that we looked at both these schemes and modified them to the UK situation?
Lord Markham (Con)
My noble friend makes a good point: if we are investing eight years in training, in the case of a GP, to ensure that they are at the top of their profession, so to speak, it is reasonable to expect them to work for a number of years in the UK so as to make good on that investment.
Lord Turnberg (Lab)
My Lords, one way of encouraging retention would be to relieve GPs of the burden of having to manage their service by making them salaried employees. How far have we got with that proposal?
Lord Markham (Con)
I actually think the partner model works very well for a lot of people and has been the bedrock of our GP service, as we know, since the beginning of the NHS. However, what is critically important is reducing the admin so that GPs can get more face-to-face time. Again, at Greystone House surgery in Redhill on Friday, I saw excellent examples of where those admin duties are being taken away so that doctors can do what they want—and are best trained—to do, which is face-to-face treatment of patients.
Baroness Hussein-Ece (LD)
My Lords, is the Minister aware of how many GP practices are still insisting on online applications to get an appointment? Many people, such as those with learning disabilities or dementia, or older people, are not well versed in using online applications. Is anything being done to encourage GP practices to make sure that those people who are disadvantaged can access GP services, without being constantly referred back to doing everything online?
Lord Markham (Con)
Absolutely; I am a firm believer that you need to have lots of channels of distribution, for want of a better word. Online is a very important one, but being able to phone up is important. The primary care plan was all about making sure that we had enough capacity to beat the 8 am rush, and to let anyone who rings know that we are going to contact them if they cannot get through at that moment, at a time of their convenience, so that they can be certain that they will get the right treatment.
Mental Health Services: Huntington’s Disease
(11 months ago)
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Lord Hunt of Kings Heath
To ask His Majesty’s Government what assessment they have made of the number of people with Huntington’s disease displaying mental health symptoms who are being denied access to mental health services on the grounds that it is an organic brain disorder.
Lord Hunt of Kings Heath (Lab)
In begging leave to ask the Question standing in my name on the Order Paper, I apologise to the House as I should have declared my GMC board interest in the previous oral intervention.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
NHS England has not made an assessment, as this is not data that is routinely collected or would be captured. Minister Whately has asked NHS England to look into reports that people with Huntington’s disease are being denied access to mental health services. NHS England is also in the process of developing a neuropsychiatry service specification, which will outline the approach to caring for patients with neurological conditions who require mental health support.
Lord Hunt of Kings Heath (Lab)
I am grateful to the Minister for that positive Answer. He may be aware that the Huntington’s Disease Association has research which shows, first, that many people with that disease suffer from severe mental health issues and, secondly, that in many parts of the country NHS mental health services refuse to give mental health treatment to those people. In addition to the work that his fellow Minister is requiring from NHS England, will the department look at the training of mental health staff so that they have the capability to support people with Huntingdon’s disease who have mental health issues?
Lord Markham (Con)
Yes. The noble Lord has heard me say many times that I have really come to appreciate the Questions format for looking into areas that might otherwise not be seen. I thank the noble Lord and the Huntington’s Disease Association for bringing this to our attention. We have the steps in place but that is a good point about the training.
Lord Kirkhope of Harrogate (Con)
I declare an interest as a former Mental Health Act commissioner. Mental health seems to be very much the poor relative when it comes to resources and definitions in our health service. Does my noble friend not feel that we perhaps need to readdress matters such as guidelines for determining mental health? Many issues which arise are about pressures on people in their lives but do not necessarily come within the category of mental health. Would we not be better off having some clearer approach to this in future?
Lord Markham (Con)
Our commitment is very much that mental health should be treated just as seriously as physical health conditions. I was delighted to announce today that on the NHS app we are launching mental health digital therapeutics, which are available for everyone to use. I recommend everyone tries them. The idea behind it all is that it is accessible to everyone at any time in their life.
Lord Patel (CB)
My Lords, part of the problem of patients with Huntington’s chorea not being given proper treatment is that it is regarded as a neurodegenerative organic disease rather than what it is: it presents first with mental health symptoms. Guidelines are required, maybe from NICE, that clearly outline the patient journey of care for people with Huntington’s disease.
Lord Markham (Con)
I have learned in the process of researching this that it is absolutely vital that commissioners understand what the patient pathway needs to be in each area. That is why we have tasked the NHS with a neuroscience transformation programme to set out those care pathways.
Baroness Wheeler (Lab)
My Lords, we know that people living with Huntington’s disease, and their families, are faced with significant challenges throughout their lives. Many young people grow up in the shadow of the disease, are caring for their relative while worrying that they will get the disease themselves, and often face daunting choices around starting a family and genetic testing. All this underlines the need for mental health care and support for all the family. What steps are the Government taking to ensure that NHS mental health trusts take a whole-family approach to this vital issue?
Lord Markham (Con)
The noble Baroness makes a very good point; it is a whole-family problem. The investment we are talking about, in allowing us to access 2 million extra mental health patients, is about making sure we have got the numbers. The digital therapeutics are another way we are making sure there is access. The specific point the noble Baroness makes about looking at the families of people with Huntington’s disease is a good point that I will take back.
Lord Weir of Ballyholme (DUP)
My Lords, there is also a great deal of evidence that Huntington’s disease can be one of the conditions which can lead to dementia. It is a concern both in Huntington’s disease and dementia that there is a level of underreferral for mental health services. What specific action is being taken to tackle this issue, given that figures suggest the number of referrals for those suffering from Huntington’s disease and dementia to mental health services is minuscule compared with the level of demand?
Lord Markham (Con)
The research from the Huntington’s Disease Association, albeit with a small sample size of only 100, suggests there is an issue here. That is why I spoke to Minister Whately about this just this morning. She is being very firm in terms of tasking the NHS to come back with a plan to make sure we get that diagnosis. We will not know until we see the situation across a larger sample size, but clearly it is something we need to work more on.
Lord Allan of Hallam (LD)
My Lords, the Huntington’s Disease Association is pressing the Government for a number of actions in its campaign “Mindful of Huntington’s”. Could I press the Minister on one of these: that there should be a care co-ordinator in each area to help manage the various professionals? Do the Government agree in principle with this approach? What specifically are they doing to work with integrated care boards for situations such as this, in which you need primary, secondary, mental health and social care to all work together?
Lord Markham (Con)
The plan with the neuroscience transformation programme is to give that pathway to every ICS, which it should follow and commission to, to make sure that specific treatment is in place. It is a complex area, as we all know. Again, as I understand it, there are more than 7,000 rare conditions. I want to be open about the ability to put in place a specific individual care co-ordinator for every one of those, but we need to make sure that ICSs have enough skills in their locker—for want of a better word—so that they can recognise the situations and make sure they are commissioning to the plan.
Baroness Fraser of Craigmaddie (Con)
My Lords, I declare my interests as chair of the Scottish Government’s neurological advisory committee and a trustee of the Neurological Alliance of Scotland. This is an issue not just for people with Huntington’s disease but for people with other neurodegenerative conditions, such as Parkinson’s. NICE standards for people with Parkinson’s recommend the prescription of Clozapine for hallucinations or delusions, but only psychiatrists are enabled to prescribe it; therefore, people with Parkinson’s do not have access to this treatment because neurologists cannot prescribe it. Will the Minister look at this? Maybe this is one way to ensure that people get the treatment they need.
Lord Markham (Con)
Yes, I think is probably the best answer I can give in the circumstances. I will absolutely do that and will write to my noble friend.
Baroness Finlay of Llandaff (CB)
My Lords, the draft major conditions strategy refers to mental health conditions and dementias so that should include diseases such as Huntington’s. The problem is—and I declare my interest in palliative care—that as these patients become terminally ill, they have complex physical and mental health needs, yet we know there are serious inequities in provision. Despite the Government’s own amendment to the Health and Care Act 2022, the draft strategy does not have a distinct section on palliative and end-of-life care. Why have the Government not made this a core, integrated part of the strategy for these major conditions when patients, such as the ones with Huntington’s, have really complex needs—and their families have complex needs too—particularly around the time of their death?
Lord Markham (Con)
The noble Baroness is correct that they have complex needs and I know from personal experience, with both my mother and my father, the importance of end-of-life palliative care. I thank the noble Baroness for the warning of the question and have been assured that the integrated whole person care approach that the major conditions strategy sets out will include palliative care measures.
Lord Laming (CB)
My Lords, the Minister will know that many of the people who suffer from this disease depend very heavily on the support of unpaid carers. I note that his fellow Minister is going to hold a cross-government round table on the needs of carers. Might that lead to the development of a national carers’ strategy?
Lord Markham (Con)
I think and hope we have done quite a bit in this space already. Obviously, we have put in place measures to get carers’ some leave and some pay for what they do. I accept that they are a huge army of helpers and there is probably more that we need to be doing. I know that Minister Whately is right on the case.
School Uniform Policies
(11 months ago)
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Baroness Wilcox of Newport
To ask His Majesty’s Government, following the recommendation of the Welsh Minister for Education that school governing bodies should review uniform policies, what assessment they have made of the case for doing this in England.
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
My Lords, following the publication of statutory guidance in November 2021, all schools in England should already have reviewed their uniform policy and made changes to ensure their uniforms are affordable for parents. The Cost of School Uniforms guidance came into force in September 2022. It requires schools to ensure their uniform costs are affordable and that parents get the best value for money. Schools should be fully compliant with the guidance by September 2023.
Baroness Wilcox of Newport (Lab)
I thank the Minister for her Answer and the statutory guidance being put in place. But the Government have never been clear about how they are going to assess the success of the guidance. Has it reduced costs for parents? Are schools complying with it? Are stronger policies such as the ones we have in place in Wales needed? Can the Minister please tell us whether there are any plans to review its implementation?
Baroness Barran (Con)
In terms of complying with the guidance, which is obviously statutory, any concerns that a parent might have about a school’s uniform policy need to be raised with the school in the first instance through its complaints process. If the parent is then unhappy with the outcome of their complaint, they can, of course, raise it with the department.
Baroness Ritchie of Downpatrick (Lab)
My Lords, can the Minister indicate what monitoring the Government undertake with schools in relation to the affordability of school uniforms? Many families face a difficult cost of living crisis.
Baroness Barran (Con)
I absolutely understand that families face a cost of living crisis, which is why the Government provided £94 billion of support for households with those higher costs across 2022-23 and 2023-24. On how we ensure compliance, I can only repeat what I said to the noble Baroness.
Baroness Thornhill (LD)
My Lords, in my long experience in education, schools are very much alive to the needs of their youngsters, particularly with regard to school uniforms. Does the Minister agree with me that the real problem here is that the noble Baroness is asking for a national government edict on school uniform? Surely this should be a matter for local education authorities, whose roles and responsibilities have been weakened and reduced over many years.
Baroness Barran (Con)
The Government believe that it should be even more local than that. I agree with the first part of the noble Baroness’s question: schools absolutely know their communities. We very much encourage schools to work with their parent bodies to establish their school uniform policies and to work out what suits them.
Lord Cormack (Con)
Does my noble friend agree that it is important to allow children to have a sense of identity and belonging, with which uniforms help very much? What is being done to encourage schools that have a recycling policy? That is terribly important and can significantly reduce the cost.
Baroness Barran (Con)
I agree with my noble friend’s first point, but we are encouraging schools to identify elements of their branded uniform that are low cost, finding their identity through a tie, perhaps, rather than a blazer. Our guidance is clear about promoting second-hand uniforms, which many students prefer because of the environmental impact.
Baroness Bennett of Manor Castle (GP)
My Lords, given that many forecast an extremely hot summer, with heatwaves, and given that our uniforms were designed for another age in many cases, will the Minister encourage others to follow the lead of Hampshire County Council—which suggested that schools should adapt uniform rules and consider adapting start and finish times, and outside activities—to acknowledge the threat presented by our rising temperature levels?
Baroness Barran (Con)
As I said, schools know their communities, and we trust them to make the right judgments for their pupils and staff.
Baroness McIntosh of Hudnall (Lab)
My Lords, in her response to the noble Lord, Lord Cormack, the noble Baroness mentioned environmental sustainability. Will she accept that the cheapest clothes available, not just for school uniforms but in many other situations, are on the whole made from the least environmentally sustainable fabrics? Will she accept that, if there is to be an increase in recycling and reusing school uniforms—which I think we all agree would be very good—it would be very much in everyone’s interests if they were made from the highest-quality fabrics? They would then last longer in the recycling process.
Baroness Barran (Con)
We have to strike a balance for parents who need to send their children to school in a uniform that fits and is suitable, encouraging them to use second-hand uniforms wherever possible, while of course considering the environment.
Deputy Chairmen of Committees
The Senior Deputy Speaker
That, as proposed by the Committee of Selection, the following members be appointed to the panel of members to act as Deputy Chairmen of Committees for this session, in place of Lord Brougham and Vaux, Lord Palmer of Childs Hill and Lord Rogan:
Ashton of Hyde, L, Colville of Culross, V, Scott of Needham Market, B.
The Deputy Speaker (Lord Haskel) (Lab)
The Senior Deputy Speaker will now move the Deputy Chairmen of Committees membership Motion and three other Motions as on the Order Paper.
The Senior Deputy Speaker (Lord Gardiner of Kimble)
My Lords, before continuing, I would like to place on record, as the Senior Deputy Speaker, the House’s very considerable thanks to the noble Lord, Lord Brougham and Vaux, who served on the panel for 30 notable years.
The Deputy Speaker (Lord Haskel) (Lab)
Is it your Lordships’ pleasure that the four membership Motions be agreed?
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, I object that the four appointments should be taken together.
The Deputy Speaker (Lord Haskel) (Lab)
Is it your Lordships’ pleasure that the first membership Motion be agreed?
European Affairs Committee
The Senior Deputy Speaker
That Lord Ricketts be appointed a member of the Select Committee, in place of the Earl of Kinnoull; and that Lord Ricketts be appointed chair of the Select Committee.
Lord Hamilton of Epsom (Con)
I will comment on the appointment of the noble Lord, Lord Ricketts, as the chairman of the European Affairs Committee. I think that we now accept that we have left the EU, and there is no political party suggesting that we should rejoin it. Therefore, can it be right that the noble Lord, Lord Ricketts, has been made chairman of the European Affairs Committee, when he is adamant that it was a great mistake that we ever left and that the people of this country were wrong to have voted that way in the referendum?
Lord Cormack (Con)
My Lords, I strongly disagree with my noble friend. We are out, and many of us regret the fact that we are out. However, what we need for our committees are people with knowledge and distinction, and no one has wider knowledge and distinction in the field of foreign affairs than the noble Lord, Lord Ricketts. What is more, he sits on the Cross Benches, so it seems to me that, having had an extremely fine chairman in the noble Earl, Lord Kinnoull, it is a very good idea to follow him with another Cross-Bencher, who will bring dispassionate advice and deep knowledge.
Industry and Regulators Committee
The Senior Deputy Speaker
That Baroness O’Grady of Upper Holloway be appointed a member of the Select Committee, in place of Lord Leong.
National Security Strategy Committee
The Senior Deputy Speaker
That Lord Sarfraz be appointed a member of the Select Committee, in place of Lord Ashton of Hyde.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, I did not know what I was letting the House in for. It is right that we should have the opportunity to discuss each appointment. There are too many appointments and other decisions that go through this House on the nod, and we find out afterwards what we have agreed to without realising the full implications. I do not even mind that the point raised on the previous Motion was something I totally disagree with.
I suggest that we delay the appointment of the member of the National Security Strategy Committee, with absolutely no disrespect whatever to the noble Lord, Lord Sarfraz. We will have an influx of new talent into this House—all of whom, sadly, appallingly and disgracefully, will be Conservative Members, with no new opposition Peers at all. This list, put forward by Mr Boris Johnson, who bullied the Prime Minister into accepting it, is very interesting in many ways. Before we continue with this particular appointment, we should give the whole multitude of talent coming in the opportunity of advising this House on national security strategy.
The Senior Deputy Speaker (Lord Gardiner of Kimble)
That is an interesting analysis, on which it would be inappropriate for me to comment as the Senior Deputy Speaker. However, the spirit of what I am putting forward is that the noble Lord, Lord Sarfraz, would be a very suitable Member to take over the position of the noble Lord, Lord Ashton of Hyde.
This is an interesting opportunity for the noble Lord to raise the points that he did. We have always said that appointments en bloc are with the leave of the House although, interestingly, under the Companion’s rules the Senior Deputy Speaker can bring forward Motions en bloc, and therefore I do so conscious that it is permitted by the Companion. Of course, we must enable the House, if it wishes, to object to something being undertaken en bloc, but the four Motions that I have brought before your Lordships today are benign and thoughtful. We will have very good additions to help us do our important work.
Lord Grocott (Lab)
My Lords, my noble friend Lord Foulkes raised another issue on this Motion, which is the growing and alarming disproportion between the number of Peers on the Government Benches and those who are members of the Official Opposition. This has been raised on many occasions in the past, but now—I am sure my maths is correct—the number of Conservative Peers outweighs the number of Liberal Democrat and Labour Peers combined. It was never envisaged that the Government should have a political majority in the House of Lords, and it had never happened until very recently, under this Government. That is something. The Senior Deputy Speaker is well known for being fair and impartial and, in a fair and impartial role, I hope that he will feel it appropriate at some stage to mention to the people who are in a position to do something about it that this disproportion is now absurd.
It raises an even more significant point—this is not a threat but an observation—that, should my beloved party reach the objective to which it is devoted at the moment and in 18 months we swap sides, for the Labour Party to get anything like the numerical advantage that the Conservative Party has as the party of government at the moment would involve the appointment of around 100 new Labour Peers. Some might say that is not enough, but I am a moderate man. If the Government ignore this and the governing party lose the election, which I fervently hope it will, it will have to face that and raise no objections whatever if the situation arises in which a large number of Labour Peers are appointed.
The Senior Deputy Speaker (Lord Gardiner of Kimble)
My Lords, all I shall say, in good fellowship, is that this goes beyond the Motion before the House today, but the House will have heard what the noble Lord said. I beg to move.
Illegal Migration Bill
Monday 12th June 2023
(11 months ago)
Lords ChamberRead Full debate Illegal Migration Act 2023 View all Illegal Migration Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 133-V Fifth marshalled list for Committee - (12 Jun 2023)
Lord Coaker
Member's explanatory statement
This amendment is part of a package which seeks to probe how victims of modern slavery can enter the national referral mechanism and receive appropriate support.
Lord Coaker (Lab)
My Lords, I declare my interest as a trustee of the Human Trafficking Foundation and the work that I do with the University of Nottingham’s Rights Lab, as declared in the register of interests. If it is okay with your Lordships, I will not repeat that declaration during this session.
We are starting with a debate on modern slavery, which of course is of real interest to us all. But first, can the Minister update us on the progress that he is making on the publication of an impact assessment? I said that I would ask him at each sitting, as I think that it is incumbent on him to tell us; he has said “in due course”, and we are wondering whether “in due course” has got any closer—or certainly whether it will be between Committee and Report. It is an issue of immense importance to this Committee. We saw yesterday, with the publication at speed of the JCHR report, what can be done if there is a will. Parts of the impact assessment will be available in the Home Office, because the Home Office will be basing the Bill on evidence and on various assumptions that it is making, and it should share those with the rest of us, for us to consider in our deliberations.
It is even more important that we understand what the Government seek to do since they are already abandoning what they put in their Bill last year. We said that it simply would not work, and the Government refused to accept the amendments that we tabled—but we see in a Written Ministerial Statement, sneaked out by the Government on Thursday evening, that they have now abandoned group 1 and group 2 refugee status in the Nationality and Borders Act. We are all pleased with that, but we told the Government that it would not work, would create a bureaucratic backlog and be unfair. The Government have found that out for themselves, and now they are telling everyone that the two groups are to be joined together. I hope that the Minister learns from that and understands that often, with the various amendments that we table, we disagree not only on the principles contained in the Bill but with the practicalities.
With those opening remarks, I shall speak to Amendment 85 in my name and in the names of the noble and learned Baroness, Lady Butler-Sloss, who cannot be with us today, as well as the right reverend Prelate the Bishop of Bristol, along with many other amendments in this group, particularly Amendments 87 and 89. They are part of a package that seek to probe and understand how victims of modern slavery under the Bill can enter the national referral mechanism and receive the appropriate support.
It is of deep regret to me that one of the flagship policies of the last Conservative Government has been smashed. I find it unbelievable that noble Lords would support driving through something that is doing that. It was something that we all regretted—to see the former Prime Minister at Second Reading sitting on the steps in this House and looking with absolute dismay and horror at what this Government are proposing. Of course, the current version of the Conservative Government dismiss that as irrelevant and as something that is not important. However, as somebody who is as tribal as they come with respect to being Labour, I would say that sometimes Governments get it right—and, certainly, the Modern Slavery Act 2015 was a landmark piece of world-leading legislation, and it is unbelievable that a Conservative Government would seek to unpick that and drive it through.
These amendments look at how victims of modern slavery do—or, more particularly, do not—enter the national referral mechanism, including victims of sexual exploitation. There is a non-conformity to the ECHR and Article 4 of the Council of Europe’s directives against trafficking, as the JCHR report just published makes clear. As the noble Lord, Lord McColl, will say under his amendment, we have not had an Independent Anti-Slavery Commissioner for well over a year, which is astonishing—because whoever that was, he or she would have been able to inform our debates.
Lord Carlile of Berriew (CB)
My Lords, my noble friend Lord Alton unfortunately cannot be with us today and has asked me to speak to a number of amendments in his name which I have signed—and one which I have not because there was no room left. I will be very happy to do so. I pay tribute to the enormous work he has put into this Bill on the issues that have arisen, including those mentioned so eloquently by the noble Lord, Lord Coaker.
At the beginning of his contribution, the noble Lord, Lord Coaker, mentioned the absence of an impact assessment and our ongoing interest in whether it will arrive in due course and, if so, whether it will be too late to have any impact. If ever there was a series of amendments for which the impact assessment’s absence has importance, it is this. I hope to demonstrate why in a few moments.
I will highlight the potentially devastating impact that the Bill will have on not only survivors of modern slavery but our ability as a country proudly to bring to justice those who are guilty of modern slavery offences. There is a paramount public interest here and internationally in those cases being prosecuted. If you ask a prosecutor how best to prepare a case, the answers are very simple. First, you need co-operative witnesses; for that, you need witnesses to feel safe to provide the evidence. That is when they will come to court, where they will be protected by judges behind screens or by other special arrangements and produce an overwhelming prosecution case. Anything that any Government do to inhibit the prosecution of modern slavery cases is not just regrettable but a manifestly dishonourable disgrace.
The amendments seek to put in the Bill obligations on the Secretary of State to carry out and present before Parliament and an appointed Independent Anti-Slavery Commissioner reports and assessments on the potential impacts of this Bill in relation to equality, human rights and compliance. Furthermore, they require detailed information pertaining to each country or territory listed in Schedule 1 to be laid before Parliament in relation to the practical implications, including but not limited to the effect on modern slavery prosecutions.
One is entitled to assume—I ask the Minister to confirm that this assumption is accurate in this case—that, in the preparation of the list in Schedule 1, the Government have carried out due diligence on the 57 countries listed as safe territories to which a person may be removed. Was the placing of a country on the list in Schedule 1 preceded by consultation? Who should that consultation have been with? Let us start with the ambassadors and high commissioners representing the United Kingdom in those countries.
We all know that the Foreign, Commonwealth and Development Office is well staffed with people here in London who are experts in and who man desks on those countries. Were they consulted before the names of those countries were added to the list in Schedule 1? I ask this question because, having been through the list with a fine-toothed comb looking at every single country on it, I cannot accept that whatever inquiries were made could really be described as diligent. Due diligence in the world in which many of us who work in the professions operate is an absolute given in every instance. I will give your Lordships some examples before I turn to my reductio ad absurdum—if I can be allowed that phrase—of this point.
Baroness Hamwee (LD)
My Lords, I have Amendment 85D in this group and have added my name to Amendment 85C from the noble Lord, Lord Alton, and the amendments from the noble Baroness, Lady Ritchie, and the noble Lord, Lord McColl. I have also tabled opposition to two clauses standing part, because we on these Benches oppose the whole approach to modern slavery and trafficking in the Bill. We oppose every clause in the Bill and have tabled that opposition because it is not a matter of tweaking, although the amendments draw attention to some particularly egregious provisions.
Clause 25 is about suspension and renewal, but its very existence, sunsetting after two years, indicates, as the JCHR noted, that the Home Office recognises the severity of the provisions. They may be short term, but they will not feel that way to victims and survivors. Can I just say how much I admire the work that the JCHR has done on the Bill? It has produced a splendid report, which I am afraid I flicked through to find the bits relevant to today—but then I am human, and the whole of it will get read.
What evidence is there of abuse of the system? Assertion is not evidence. What evidence is there that victims of modern slavery are likely to be a danger to the public or a threat to public order? Is it really appropriate for a Minister, having sunsetted a provision, to revive it by regulations? A lot of constitutional points arise in the Bill. Mind you, I would rather see it sunsetted before the sun even rises.
When the Bill was starting its passage through Parliament, I was in a taxi and the driver inevitably wanted to tell me what Parliament should be doing. On the subject of small boats, he said he was concerned that his children should be safe from all the terrorists arriving in small boats. He was hearing the message that the Government wanted him to hear. Actually, we had quite a reasonable conversation about asylum seekers and he was very receptive to a number of the things I said, but it brought home to me just how dangerous the Government’s messaging is: it is dangerous to individuals, dangerous for cohesion and integration, dangerous in the attitudes it fosters and much else.
As the JCHR said, how can the modern slavery clauses be applied compatibly with Article 4 of the convention, which places on the state positive obligations that are absolute and cannot be derogated from? A similar point arises with ECAT. The JCHR recommends that Clause 21 be removed, and although I took a little comfort from the fact that our instincts were backed up, that does not achieve it, of course. As the committee said, there should at least be no removal of asylum seekers until a “conclusive grounds” decision has been made. As Amendment 85D indicates, one of our concerns is the recovery period, as it always has been. For many victims, 30 days is nowhere near enough for them to recover. There being no period for recovery at all is far worse.
Amendment 90 refers to co-operation with investigations and proceedings. The point that occurred me a day or two ago follows on from what the noble Lord, Lord Carlile, has been saying. I do not think the point has been made that the absence of the victim may jeopardise proceedings in a number of ways, including because the victim is not available for cross examination, either in person—that is always best—or by video link if that is what the Home Office envisages. I want to take this opportunity to ask the Minister: what is envisaged? Are the Government confident that it will always be possible to give evidence by video link, given the countries to which asylum seekers may be removed? Is this to be a provision in removals agreements? It seems to me that not a lot more than lip service is being paid to the importance of tackling smuggling and trafficking gangs, improving the conviction rate and securing remedy for victims. Nothing in the Bill will increase the efficiency of all those things.
Finally, I want to say a word on Amendment 146 in the name of the noble Lord, Lord McColl, which addresses the absence of an Independent Anti-Slavery Commissioner. I hope we will not hear from the government Front Bench that a new commissioner will be appointed “in due course”. The lack of an appointment for over a year now makes the Government’s lack of real concern about modern slavery very evident.
The Lord Bishop of Southwark
My Lords, Amendment 88 in the name of the noble Lord, Lord Coaker, is supported by my right reverend friend the Bishop of Gloucester, who regrets that she is unable to be here today. There is much similar ground in this amendment to others, but this amendment focuses specifically on victims of sexual exploitation.
The Bill directs that victims of modern slavery, including victims of sexual exploitation, shall be subject to detention and removal to their own country or to a third country. As we have heard, the principal exception to this is if the Secretary of State is satisfied that the individual is co-operating with criminal proceedings and that their presence in the United Kingdom is necessary for this to continue. We know that the Government have committed to victims of sexual violence and exploitation in this country. The UK ratified the 2011 Istanbul Convention on Preventing and Combating Violence Against Women and Domestic Violence only last summer and there has been much work done over the past few years to increase awareness and tackle perpetrators. To deny those who have arrived here safety and protection is a regressive move.
Baroness Whitaker (Lab)
My Lords, all the amendments in this group are very serious contributions to improving the Bill, but I want briefly to add my support for Amendment 85C in particular. I cannot match the noble Lord, Lord Carlile, in his acquaintance with ChatGPT, but his amendment, supported by the noble Lord, Lord Alton, the noble Baroness, Lady Hamwee, and my noble friend Lady Kennedy, who is not in her place, goes some way towards dealing with the difficulties of the astonishing assumption behind Schedule 1—that asylum seekers can safely be deposited in all these 57 countries. Quite apart from the observation by the noble Lord, Lord Kerr, during our previous Committee sitting that they do not have asylum regimes in any case, to make Schedule 1 acceptable the Minister must accept this amendment.
Baroness Ritchie of Downpatrick (Lab)
My Lords, I have tabled Amendments 97 and 98 in respect of Clauses 27 and 28. I commend the report, published yesterday, from Parliament’s Joint Committee on Human Rights—a very fine document which says that this Bill will have “a disproportionate impact” on the victims of modern slavery. My noble friend Lord Coaker referred to the coalition Government of 2010-15, which took the initiative to introduce in Parliament and implement the Modern Slavery Act. This Bill drives a sword through it and completely lacerates it.
There is no doubt that the number of amendments that refer to modern slavery or human trafficking are testament to the Committee’s concern about the Government’s proposal. Again, I refer simply to my own Amendments 97 and 98. The Government frequently refer to victims of the “heinous crime” of modern slavery and, in March 2021, they commended themselves on how many victims had been referred to the national referral mechanism, stating that
“the UK has a strong reputation internationally in addressing modern slavery referrals; year on year there has been a rise in referrals from all frontline responders into the NRM”.
It is extremely concerning that, some two years later, we are talking about the same increase as a matter of abuse and the same victims as threats to public order. That is exactly the language that has been used by this Government. Lest there be any confusion, this language is being applied to individuals who have been the subject of exploitation through being either coerced or deceived. The language is being applied not to those who traffic and exploit people as commodities but to the victims of crime.
The UK has signed up to international obligations to identify and care for victims of modern slavery. One of those is the European convention against human trafficking—frequently referred to as ECAT. The noble Lord, Lord Carlile, referred to this. ECAT requires the identification of victims so that they might benefit from the convention entitlements, including the provision of a recovery period when the person cannot be deported and can receive support and assistance. The Bill does not prevent the identification part of our obligations, but it makes identification meaningless for the most part.
Last year, under the Nationality and Borders Act 2022, the Government determined that some victims should be excluded from a recovery period if they are a threat to public order. There is a case for excluding those convicted of serious criminality; indeed, ECAT recognises that under Article 13. But here is the key point: it has been applied on a person-by-person basis. This Bill, in the words of the Independent Anti-Slavery Commissioner, Dame Sara Thornton, introduces
“a massive extension of that public order disqualification to everybody”.
Yes, all victims of modern slavery within the scope of the Bill are being considered a threat to public order. I hope your Lordships will indulge me as I quote the Government’s justification for this extension. In the human rights memorandum, the Government say that they consider that a person who falls under the duty to remove is
“a threat to public order, arising from the exceptional circumstances relating to illegal entry into the UK, including the pressure placed on public services by the large number of illegal entrants and the loss of life caused by illegal and dangerous journeys”.
ECAT makes no differentiation between victims of modern slavery who are in the country illegally or legally. The convention knows that these individuals need safeguarding and protection, regardless of their immigration status.
Parliament’s Joint Committee on Human Rights, which published its report yesterday, states that
“the Government’s position that the modern slavery clauses are ‘capable of being applied compatibly’ is untenable”.
My noble friend Lord Coaker already referred to this point. The report continues:
“The UK has clear positive duties under Article 4 ECHR (prohibition of slavery and forced labour) to protect victims or potential victims of slavery or human trafficking, as well as duties under ECAT—these provisions of the Bill are in direct conflict”
with the above-mentioned article and ECAT. The committee recommends that the clauses in the Bill dealing with modern slavery should be removed, a point I concur with. The Commissioner for Human Rights of the Council of Europe has said about the extension of the public order disqualification:
“Such a justification appears to me to be so broad and general that it increases the likelihood of an arbitrary application of the modern slavery protections”.
The Parliamentary Assembly of the Council of Europe is due to debate a report on a number of human rights measures currently being debated in the UK, including the Bill. The provisional report was published on 25 May. In reviewing the Bill’s compatibility with ECAT, the report says:
“The fact that an individual was trafficked into the UK does not make that individual thereafter a threat to public order”,
a point that this House and the Government should take on board.
I was disappointed that, on day two in Committee, the Minister said that the Bill was compliant with ECAT because
“ECAT envisages that the recovery period should be withheld from potential victims of trafficking on grounds of public order”.—[Official Report, 5/6/23; cols. 1200-01.]
This is exactly the opposite of the position taken by GRETA, the body overseeing ECAT. In its submission to the Joint Select Committee on Human Rights inquiry into the Bill, it said that such an approach
“would be contrary to the purpose of Article 13”,
since Article 13(1) is
“intended to apply in very exceptional circumstances and cannot be used by States Parties to circumvent their obligation to provide access to the recovery and reflection period”.
My Amendments 97 and 98 urged the Government to rethink their interpretation of Article 13(3), which is, in my view and that of GRETA, contrary to the convention. I also urge the Government to be mindful of the recommendations in the Joint Committee on Human Rights report, just published; to heed its advice; and to indicate, in a realistic and humanitarian way, when they will respond to that report. The website states that the Government will respond in August, long after the Bill has been implemented into law. That is too late. We need a response at a very early opportunity—in fact, before we return for Report on the Bill.
I ask the same question as did my noble friend Lord Coaker: when will the impact assessments be made available to this House? Will it be done at a very early opportunity and before the completion of Committee on the Bill?
Lord Morrow (DUP)
My Lords, many Peers spoke at Second Reading about their concerns over the modern slavery amendments. They did so again on day two in Committee, in response to Amendment 19A and others tabled by the noble Lord, Lord Hunt, and on day three, after the forensic speech made by the noble Lord, Lord Purvis, on whether Clause 5 should stand part of the Bill.
The amendments in this group again raise those concerns, and I hope the Minister will recognise the concerns across the Committee. Before I speak to my Amendment 145, I put on the record my support for Amendment 86, of the noble Lord, Lord Randall. As I have already said in Committee, I am deeply concerned about the impact that the Bill will have on victims of modern slavery; this amendment would mitigate some concerns by ensuring that victims of modern slavery exploited in the UK will still be able to access the support that they need to recover. I hope the Minister will update the Committee on the ongoing discussions on this proposal that were promised on Report in the other place.
Baroness Meacher (CB)
My Lords, I shall speak briefly, but I hope strongly, to support the intention of the noble Baroness, Lady Hamwee, to oppose the question that Clause 21 stand part of this Bill. We have had a very long debate and incredibly powerful speeches, particularly, if I may say so, from the noble Lords, Lord Coaker and Lord Carlile, spelling out the immense importance of all the amendments in this group. I do not need to repeat any of those arguments.
I want to mention Frank Field—my noble friend Lord Field. I saw him today; we know he is dying. He was incredibly important in the passage of the modern slavery legislation, along with the noble and learned Baroness, Lady Butler-Sloss, who unfortunately cannot be here today, and the former Prime Minister Theresa May. He said to me today, “Please explain and set out that if all the amendments in this group are passed, yes, they would indeed provide important protections for the victims of modern slavery and trafficking; but please spell out that this would not be sufficient. There will be the most appalling abuses of these most vulnerable of victims unless Clause 21 does not stand part of this Bill”.
Lord Randall of Uxbridge (Con)
My Lords, I start by declaring an interest as the deputy chair of the Human Trafficking Foundation. Following on from the noble Baroness, Lady Meacher, I will say that the first time I investigated this matter was when I served on a committee with the noble Lord, Lord Field, when he was in the other place, as was I, as well as with the noble and learned Baroness, Lady Butler-Sloss; so my interest in this goes back 10 years. I apologise to noble Lords for my absence during Second Reading because of ill health. If there was ever an incentive to get back to health, it was so that I could speak on this part of the Bill.
I will speak in particular to Amendment 86 in my name and those of my noble friends Lord McColl of Dulwich, Lady Helic and Lady Stroud, to whom I am grateful. The purpose of this amendment is simple: to allow modem slavery victims exploited in the UK to continue to receive temporary support and protection from removal under current laws, enabling more of them to engage in prosecutions. It does this by exempting victims exploited in the UK from the Clause 21 disapplication of the statutory recovery period and access to temporary leave to remain for confirmed victims.
If we do not amend Clause 21 we will be restricting access to modem slavery support, but it will not stop the boats. It will remove support and protection from many genuine slavery victims who have been exploited on our shores, and will make prosecuting criminal gangs harder, as we have already heard. Human trafficking is distinct from people smuggling and its victims are first and foremost victims of crime.
Few modern slavery victims arrive by small boat. As I think we have already heard, only 6% of small boat migrants were referred to the modern slavery national referral mechanism; that is, 2,691 individuals in 2022 compared to a total of 12,753 NRM referrals for non-UK nationals. A majority of potential victims referred to the NRM are exploited in the UK in full or in part, and most of those are non-UK nationals—58% in 2022. Modern slavery is happening in communities up and down the UK. Thousands of men, women and children are victims of labour exploitation—whether, for example, in agriculture, manufacturing or nail bars—as well as sexual exploitation and criminal activity such as county lines drug dealing.
Many of these people are likely to have arrived in the UK illegally within the terms of this Bill, whether by small boat, by lorry or with leave obtained through deception such as false documents—including deception by their exploiter. Instead of being given temporary protection in the UK, these victims will now be subject to removal and detention under this Bill and will be denied access to the statutory 30-day recovery period of support for modern slavery victims. Victims will simply be driven even further underground by the fear of deportation and trapped in the arms of their abusers. Criminal gangs will be free to continue exploiting these people and the job of the police and prosecutors will be made far more difficult, as victims’ vital evidence will be lost.
Why is this amendment needed? Victims of modern slavery experience inhumane torture and abuse. They are deprived of their liberty and dignity. Those exploited and abused on British soil, whether UK citizens—an increasing number of UK citizens are victims of modern slavery—or foreign nationals, deserve care and a chance to recover. We cannot leave them to suffer exploitation and abuse in the hands of their traffickers just because they were brought into the UK illegally. I ask my noble friend the Minister: has he ever met a victim to hear their harrowing tales? I say to my noble friend that, when I have had the opportunity to meet some of these people—it is not easy, for obvious safeguarding reasons—you realise what a terrible crime it is and what a terrible thing we are potentially doing with this clause.
Victims hold the key against their perpetrators. Failure to support victims not only increases retrafficking rates, but also hinders our ability to dismantle the criminal networks managing the abuse because their vital evidence and intelligence is lost. We cannot allow unscrupulous criminals to get away with impunity, poisoning our own communities.
Prosecution and conviction rates are stubbornly low. In 2022, there were just 194 convictions for Modern Slavery Act offences in England and Wales on an all-offence basis. Yet since 2017 there have been thousands of NRM referrals every year for modern slavery occurring in the UK. In 2021, the National Crime Agency’s threat assessment said:
“It is likely that at least 6,000 – 8,000 offenders are involved in the exploitation of people in the UK”.
Evidence from the Centre for Social Justice and Justice and Care shows that, with appropriate, consistent support, more victims engage with investigations and prosecutions, providing vital information that brings criminals to justice. But support needs to come first to create stability and confidence. We need to ensure that victims of slavery exploited in the UK can continue to receive support and protection from removal during the temporary, statutory recovery period. This will ensure that victims can still have the confidence to come forward.
In response to a similar amendment tabled in the other place by my right honourable friend Sir Iain Duncan Smith, and supported by my right honourable friend Theresa May, the Immigration Minister said:
“we will look at what more we can do to provide additional protections to individuals who have suffered exploitation in the UK”.—[Official Report, Commons, 26/4/23, col. 781.]
Can my noble friend the Minister give us some more information about the intended additional protections? I could perhaps suggest he just accepts my amendment. Have the Government consulted the Crown Prosecution Service and the police about the likely impact of Clause 21 on investigations and prosecutions and the burden it will place on their staff?
My noble friend the Minister may come up with some points. He will possibly say that people will make false claims of being exploited in the UK to bypass deportation. However, as we have already heard, a victim cannot self-refer with a claim of modern slavery. Referrals can be made only by official first responders who suspect the person is a victim. In 2022, 49% of referrals were made by government agencies, most from UK Visas And Immigration and from Immigration Enforcement. Only 6% of referrals were made by NGOs. The rest were from other statutory services. Training and guidance for the staff making referrals, particularly those in Home Office agencies, should prevent inappropriate referrals being made.
Lord McColl of Dulwich (Con)
My Lords, I was present at Second Reading but was prevented from taking part for medical reasons. I am very grateful to your Lordships’ House for originally giving me such support in putting forward the first anti-slavery, anti-trafficking Bill. It was a real tribute to this House to have the tremendous support that was given all around it.
I am pleased to be a cosignatory of my noble friend Lord Randall’s Amendment 86. I firmly believe that, if victims of modern slavery have been exploited in the UK, we have an obligation to assist them in recovering, with accessing the NRM and with all the other modern slavery protections that have been established for that purpose.
I record my support for Amendment 90 from the noble and learned Baroness, Lady Butler-Sloss, which would reverse the presumption created in another place that individuals assisting the police do not need to be present in the UK to do so. We must not underestimate how much courage it takes for victims to provide evidence. A victim of forced labour described being in fear of her life if she exposed where her exploitation took place. Victims need support, and we should be a country that is willing to provide it if we are asking them to give evidence—many speakers have stressed this.
My Amendment 146 would prevent Clauses 21 to 28 being commenced until the Government have appointed an Independent Anti-Slavery Commissioner and until there is robust scrutiny of the Bill from an independent person with the expertise required to understand the complexities and nuance associated with modern slavery. I of course also support Amendment 92B, tabled by the noble Lord, Lord Alton.
The ground-breaking role of the Independent Anti-Slavery Commission was established under the Modern Slavery Act 2015, and it aims to encourage good practice in the prevention, investigation and prosecution of modern slavery offences, and in support for victims. Yet the role has been vacant for over 12 months. During that time, there have been significant changes to the modern slavery protections in the UK and to the debate about care for victims. The Bill should have been informed by the views of an Independent Anti-Slavery Commissioner but, so far, it has not. I and other parliamentarians have tabled PQs, asking the Government when they intend to fill this vacancy. If the Government are committed to beating modern slavery, I contend that, as a bare minimum, we should abide by our own modern slavery legislation.
I hope that the Minister will provide an update on the current stage of the recruitment process. The mere appointment of a commissioner is not enough, although it would of course be welcome. Any new commissioner needs to be afforded sufficient time to review and analyse the Bill and, where appropriate, make recommendations. If we are truly striving for best practice in tackling modern slavery, I agree with Dame Sara when she said:
“There is a real need for that fearless, independent, expert voice, and that is missing”.
I urge your Lordships to support Amendments 86 and 146.
Lord Cormack (Con)
My Lords, it would be entirely appropriate to support virtually all of these amendments, which have my total support. But the message from Frank Field—the noble Lord, Lord Field—was right: however many amendments we pass—and I envisage some long nights on Report—nothing will significantly improve this shoddy, shabby and unworthy piece of legislation. Frankly, I am as ashamed that a Conservative Government are bringing forward this legislation as I am proud that Theresa May brought in the Modern Slavery Act in the year when we commemorated the 800th anniversary of Magna Carta, symbolised by the Barons of Runnymede who look down on us today.
I am very conscious of the plea made on Thursday last week by the noble Baroness, Lady Smith of Basildon, when she urged the House not to go in for unnecessary repetition and so on. She was quite right to do that, but I do think we should have some proper answers from the Minister today. When is the impact assessment going to be ready? When is the anti-slavery commissioner going to be appointed? What plans are there to talk to that man or woman at the earliest possible date? If, in fact, in due course in response to that very fine report from the Joint Committee, just published, the answer is that that is going to be answered by the Government in August, when Parliament will have dealt with Report stage, that is nothing less than an absolute disgrace.
We want to have some definitive answers by the time this Bill goes to Report. It is a shoddy piece of legislation. It is not worthy of the British Parliament. It is not worthy of a Conservative Government and I will say little more about it other than I feel a shame that is in sharp contrast to the feelings I had in 2015 when Theresa May’s Bill became an Act of Parliament.
Lord Weir of Ballyholme (DUP)
My Lords, I also support the amendments in this group, but at the start I would perhaps add two caveats. I will make reference to, I think, five of the amendments, because I do not simply want to reiterate all the various points that have been made by others. I also share with the noble Lords, Lord Field and Lord Cormack, and others—and I suspect those who tabled the amendments—the belief that the purpose of these amendments is to help ameliorate and mitigate some of the worst excesses of the provisions but that they cannot, in themselves, rectify what is there.
I think that two of the proudest moments in our democracy in the last 15 years have been in this field. Mention has been made on numerous occasions of the Modern Slavery Act 2015, which was ground-breaking legislation, and the Committee will be familiar with that. I also refer from my own experience more locally to the Human Trafficking Act that was passed in the Northern Ireland Assembly and brought by my colleague and noble friend Lord Morrow as a Private Member’s Bill. It predated the Modern Slavery Act.
Both those Acts tackled the utter evil of human trafficking. Human trafficking, whether it is childhood exploitation, servitude, sexual exploitation and prostitution, or using people as drug mules or whatever is inherently evil because it dehumanises people. It treats those people as a commodity simply to be used for advantage. Therefore, it is right that we target our efforts against modern slavery.
Some critics of this Government would take a very, I suspect, unkind and cynical approach towards this piece of legislation. They would see the Government’s motivation as some form of cynical electoral virtue signalling, of trying to put through a piece of legislation which may not even really make it into any form of practice and may not survive any form of legal challenge but is instead designed to send out a signal to some within the electorate of their determination at least to be seen to be doing something.
I am sure that that is an entirely unkind interpretation of the motivations of this Government and indeed I challenge the Government as I am sure they would very keen to refute those unkind and cynical expectations. I think the best way they can do that, particularly on the grounds of modern-day slavery, is by enthusiastically embracing the amendments in this group.
I turn to the two main purposes of our focus against modern-day slavery—the two main motivations. First, as a nation—and this is very much at the heart of the Modern Slavery Act—we should show compassion and support for victims. I appreciate that there are some in this Committee who have greater expertise than I have, and some who have directly met victims, but for any of us to place ourselves in the shoes of those who have been exploited and trafficked is very difficult—but we need to support them. Secondly, we need to take every action that we can to bear down on the perpetrators, who would cynically exploit and use them in human trafficking. So we have support for victims and opposition to perpetrators.
Baroness Kennedy of The Shaws (Lab)
My Lords, I am a member of the Joint Committee on Human Rights. The report, as others have mentioned, came out early today, and many noble Lords will not yet have had the opportunity to read it. Evidence was taken from many people who had in-depth experience and who were experts in these different fields.
On modern-day slavery, we heard from the former anti-slavery commissioner, Professor Dame Sara Thornton, who, as noble Lords know, had been a very senior police officer and the lead police officer in the area of Oxfordshire. She made it very clear that she was horrified at the implications of the Bill, saying:
“It basically denies those who are trafficked to this country and arrive irregularly any modern slavery protections … It will be the victims who are punished, not those who are trafficking them”.
She says that as someone with huge experience. While we do not have a modern-day slavery commissioner at the moment, she is our last one, so her voice of experience should be heard and appreciated by this House.
We also heard from the Salvation Army, which the Committee will know is, again, the lead organisation dealing with modern-day slavery. Similarly, in its testimony to us, it said that
“removing people … will deliver vulnerable people back into the hands of the criminal gangs who have exploited them. This does nothing to break the cycle of exploitation”.
We really have to listen to that. I know that there are people who do not believe in expertise, but we have to listen to those with real expertise. I agree that this whole set of recommendations in the Bill is unacceptable, inhumane and unworkable.
The noble Lord, Lord Weir, suggested that we are being cynical if we think that this is performance politics. I am afraid that that is the view held by noble Lords all around this Committee, not just on the Opposition Benches. There are many Members on the Conservative Benches who know that the Bill is really the last shout of a failing Government. One said to me that it was the last card in the pack. Just think about what that means: that, when you are foundering, you turn to immigration and make a dog-whistle piece of legislation in the ugliest of ways.
Baroness Helic (Con)
My Lords, I will speak in support of Amendment 86 in particular, but I fully endorse other efforts to preserve protections for victims of modern slavery.
As I said at Second Reading, and as many noble Lords have warned, the provision in the Bill to remove modern slavery protections from migrants targets the very people most at risk of being trafficked. It would reduce the number of people coming forward with evidence and make prosecutions harder. My noble friend the Minister reaffirmed then the Government’s commitment to tackling the horrendous crime of modem slavery and to supporting victims, but I am afraid that the Bill still falls short.
There are strong similarities to cases of sexual and gender-based violence. We know that survivors’ testimony is crucial for accountability, but, without proper support and good systems in place, survivors are not, and do not feel, able to give evidence. The Government say that, where absolutely necessary and where they are co-operating with the police, victims will be able to stay in the United Kingdom while their case proceeds, but I fear that this sets the bar way too high. By the time it becomes apparent that a survivor’s evidence is necessary, it will often be too late. Survivors need the time and space to process what they have been through and to prepare themselves for coming forward with evidence, speaking about what they have experienced and going through the justice system. It can be an intense and daunting process which requires determination from the survivor and engagement and support from prosecutors. That is much harder to deliver remotely and why a recovery period is so crucial. It allows the time to reflect, to receive support and to rebuild trust, which may have been shattered by the experience of being trafficked, but without which they cannot work with the police or prosecutors.
There are parallels with the situation of migrant victims of domestic abuse. We have ample evidence that the fear or threat of deportation is used by abusers to control their victims and that it prevents victims from seeking help or escaping an abusive situation. Similarly, if survivors of modern slavery and human trafficking believe that reporting the crime that they have experienced will mean immediate deportation, trafficked persons are far less likely to come forward in the first place. The net result of that might end up being more people suffering and less control over migration.
The support that survivors of trafficking are able to receive during a recovery period can also reduce their risk of being trafficked in future. Trafficked persons are often highly vulnerable. Returning them to their home country without support may not solve the problem and risks putting them back into the cycle and seeing them trafficked again. A recovery period can be crucial to ending dependency, allowing survivors to rebuild their lives—that, in itself, is a blow to the human traffickers’ model.
I really hope that my noble friends in government will feel able to look again at this. I do not think that removing the protection against modern slavery will have the impact for which they hope; I fear that it will make the situation worse rather than better. If we want to prevent dangerous illegal migration, we need to tackle the traffickers who facilitate it. Targeting their victims will only make that harder. By ensuring the recovery period, Amendment 86 would allow survivors the space and cover to receive the support they need and, in doing so, would make successful prosecutions more likely and escape from modern slavery easier. I hope my noble friend the Minister will be able to support it.
Baroness Stroud (Con)
My Lords, I support my noble friend Lord Randall’s Amendment 86, to which I am delighted to have added my name. I also support other amendments in this group. I draw attention to my entry in the Register of Members’ Interests as a member of RAMP. I debated whether to add my comments to this already extended debate, but it is important that the record clearly demonstrate that voices on all sides of the House have raised their concerns about this clause.
This nation has a proud history of ending the evils of the slave trade, and on multiple occasions the Government have recognised the importance of building on this history. My noble friend the Minister used the standard Home Office line to take when he said:
“The UK has led the world in protecting victims of modern slavery and we will continue to identify and support those who have suffered intolerable abuse at the hands of criminals and traffickers”.
I agree that the UK has led the world in bringing forward legislation that protects victims of modern slavery, and some of us were deeply involved in bringing it about, but I simply cannot see how the Bill enables us to continue to identify and support those who have suffered intolerable abuse at the hands of criminals and traffickers.
As it stands, the Bill will prevent the care of victims of slavery and in so doing will damage our reputation. When I was a Conservative special adviser, we talked about the modern slavery legislation as one of our proudest achievements, but clauses in this Bill, coming fresh on the heels of the Nationality and Borders Act, are systematically dismantling that achievement, as we have already heard.
Through the Illegal Migration Bill two things are happening regarding slavery. First, support is removed for those who have been exploited and enslaved if they arrive in the UK via irregular routes. Secondly, the Bill makes it much harder to catch and stop the traffickers and slave-drivers, who are the real villains. Amendment 86 would rectify those two serious moral and practical issues in the Bill.
First, if someone is trafficked to the UK via irregular routes and is enslaved in the UK, the provisions in the Bill will prevent them being referred to the national referral mechanism or having the protection of the Modern Slavery Act. This covers most of the men, women and children who are trafficked into slavery in the UK. Amendment 86 would ensure that those who have been exploited and abused while in the UK, whether they are a UK citizen or not, receive the care and support they need. It would level the playing field by saying that, regardless of your mode of entry, if you are a victim of slavery you cannot simply be detained and removed.
Secondly, the amendment would address the misguided nature of the legislation. As we have heard, victims of slavery hold the key to the prosecution of perpetrators. This is vital to remember. As drafted, the Bill will prevent victims coming forward to give evidence because of the fear of being detained and removed.
Evidence is already starting to emerge from UK police forces that the erosion of victim protection from the Nationality and Borders Act is severely hampering the prosecution of perpetrators. If we leave this Bill as it stands, it will hamper prosecutions even further. Surely, its whole purpose is to stop these illegal acts. Amendment 86 creates space for victims of slavery to come forward.
Lord Macdonald of River Glaven (CB)
My Lords, allow me to add a few words about law enforcement. It seems to me that the problems the Bill intends to confront would best be solved by international co-operation, including international rules of law, but also by firm domestic law enforcement against the traffickers. That is a critical component.
It is very difficult for me to conceive of successful cases against traffickers without the co-operation of their victims. Persuading victims of crime in some categories of crime, including human trafficking, to give evidence against their tormentors is difficult, complex, sensitive, time-consuming work for the most obvious of reasons—the victims themselves feel under threat. This Bill gives those co-operating witnesses, who are showing enormous courage, no encouragement, no succour, no assistance, no help whatever. It will undoubtedly, in my judgment, make successful cases against traffickers less likely. This Bill is not simply anti-asylum but anti-prosecution.
Lord Kerr of Kinlochard (CB)
The strongest argument, apart from the legal and moral arguments, is the practical one that has just been made. How do you persuade victims of slavery to come forward and assist in a case if, when they do so, they are declared inadmissible and dispatched abroad? It is simply counterproductive and destructive of the whole basis of the Modern Slavery Act.
I would like to start as the noble Lord, Lord Coaker, did, by pointing to the Government’s announcement last week—there seemed to be some other things going on at the end of last week. It would have been better to make the announcement in this House, but it slipped out that the two-tier system for handling asylum introduced by the Nationality and Borders Act was being abandoned. We spent weeks pointing out that it would not work. However, better the sinner that repenteth, and I warmly welcome the Government’s decision to drop it. I think they were absolutely right.
The asylum queue now, at about 178,000, is 20,000 longer than when, with objections, we passed the Nationality and Borders Bill. A principal reason for it getting longer is the two-tier system that was introduced, which is administratively unworkable. I warmly welcome the Government changing their mind, but it is a shame that it remains a stain on our statute book—a clear breach of the UN refugee convention, as the UNHCR confirmed at the time. Of course, it was a smaller breach of the refugee convention than this Bill, as the UNHCR has confirmed.
If I could have the Minister’s attention, I ask him to at some stage correct the record on the UNHCR’s role in these matters. In the first day in Committee, asked about its views on the Bill, he acknowledged:
“Some parts of the UNHCR have views on the Government’s position”
but said that the UN
“is not charged with the interpretation of the refugee convention”.—[Official Report, 24/5/23; col. 968.]
He might want to reconsider that. Under Article 35 of the convention, the duty is laid on the UNHCR of supervising the application of the convention and all parties to it have an obligation to co-operate with the UNHCR. As for “some parts” of the UNHCR commenting on the Government’s position, it has published and formally conveyed to the Government its formal position and legal observations on the Bill in the exercise of its responsibilities under Article 35. That is what it is required to do and what it has done. To suggest that criticisms of the Bill come from “some parts” of the UNHCR but are not its institutional view is wrong.
I come back to the modern slavery amendments. Mine was taken in the middle of the night, unbeknown to me as I rashly went home shortly before midnight. One of the charms of being a Cross-Bencher is that you never have the faintest idea of what is going on. The usual channels rarely have a tributary around these parts. My amendment was crucial, but it would be out of order for me to speak to it now. However, I can praise the Joint Committee on Human Rights for its magisterial report that came out over the weekend. Its conclusion on the clauses we are looking at is exactly the same as that which the noble Baroness, Lady Meacher, came to:
“It is, in our view, wholly inappropriate to categorise victims as a threat to public order by the mere fact that they arrived … through an irregular route”.
It says—correctly—that Clause 21 breaches Article 10 of the convention against trafficking and formally recommends that it should be removed from the Bill. I agree. It seems to me that that is what we should do, so I shall support the noble Baroness, Lady Hamwee, when we consider whether it should stand part.
My general view is in line with that of the noble Lord, Lord Cormack: I do not like this debate, for a number of reasons, partly because the best debates have two sides to them. This is tennis with nobody on the other side of the net and I am fed up with it.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to follow the noble Lord, Lord Kerr. I agree with him about that form of tennis and, seriously, about both the timing of the Government’s announcement of their plans for the Nationality and Borders Act and the fact that this is a U-turn that needs to be applauded. If the Government point themselves in the right direction, people should not jump up and down and point a finger and go “U-turn, U turn”. It is better than not U-turning. We have heard many powerful speeches in this debate, but I think the Committee will join me in commending all Members on the Government Benches who have shown both courage and compassion in getting up and opposing the Government’s plans for victims of modern slavery.
I agree with both the noble Lord, Lord Cormack, that the whole Bill should go, and the noble Baroness, Lady Hamwee, that all these clauses should go, but I actually signed a number of the amendments in the name of the noble Lord, Lord Coaker—a package which has helped us interrogate what the Government are now doing and the impact that it will have. In that light, I shall ask the Minister three specific questions that in some ways draw on what has been said before, but also go in slightly different directions.
My first question concerns the situation if the provisions under the Bill, as the Government plan, essentially end the protection for victims of modern slavery. Imagine a police officer now, crouching down beside, say, a frightened young man who has been forced to work in an illegal marijuana farm, behind locked doors where the whole thing could have caught fire and killed him at any moment; a young woman forced by threats to stay in a nail bar; a young man who has been trapped for months in horrendous conditions at a hand car wash; or indeed a young woman who has been forced into sexual exploitation. Currently that police officer can crouch down beside them and say, “It’s all right, you’re safe now”. What does the Minister think a police officer would be able to say if the Bill goes through as drafted? What could that police officer say to the victim of modern slavery? I ask the Committee to think how the police officer might feel about being in that situation.
My second question concerns one of the things that that police officer would probably do, perhaps not immediately but soon after that. They would start to say, “Can you tell me what is happening here? Please, tell me what is happening. A bit down the track, would you think about testifying against the person who put you into this situation?” If we think about even the intelligence gathering, let alone the prosecution, what would the passing of this law do?
My third and final question is: have the Government really considered this? Let us think about the kinds of illegal operations I referred to—illegal enterprises that are a stain on our communities, that compete with and thrust out honest, decent businesses, that are a rotten core in the community and have all sorts of nasty effects. What will allowing those operations to continue, which is what the Government’s plans would do, do to our communities?
The Lord Bishop of Durham
My Lords, I declare my interests with RAMP and Reset and, like the noble Lord, Lord Coaker, did at the outset of the debate, I hope that will stand for the other times I speak later on different groups.
I support all the amendments, but I am speaking in support of the proposal of the noble Baroness, Lady Hamwee, that Clauses 21, 25, 26 and 28 be completely removed. This is supported by my noble friend the right reverend Prelate the Bishop of Bristol, who we heard earlier is unfortunately unable to be here today. Bishops across England have had the privilege of working very closely with the large sector of faith-based charities and projects that work with victims of slavery. We have heard a lot about the Salvation Army, but I want to highlight the Clewer Initiative, which is our own project raising awareness and helping support victims. The feedback that has been coming from the Salvation Army, from Clewer and from other groups in relation to the modern slavery provisions of the Bill ranges from trepidation to outright horror.
Rather euphemistically, the Explanatory Notes refer to what is proposed in this and the following clauses as “a significant step”. I suggest that the complete disapplication of all support, replaced with detention and removal, is drastic in the extreme. I cannot see how such a step could be justifiable, but for it even to be defensible would require the most robust and extensive level of proof of its necessity. I do not think that has been shown.
Baroness Sugg (Con)
My Lords, I support Amendments 86 and 90. No one wants to see abuse of modern slavery legislation or false claims from those arriving on small boats, but I regret that in the Bill currently, all protection for genuine victims of modern slavery has been removed. These amendments are focused just on those who have been unlawfully exploited here in the UK; they do not allow people arriving to claim it. Any abuse of the national referral mechanism should be addressed but, as we have heard, no data currently exists on this, so I would be grateful if my noble friend the Minister could share any information on the scale of this issue. These amendments provide the additional protection for victims of modern slavery that the Immigration Minister is looking at, and I hope my noble friend will carefully consider them.
Lord Paddick (LD)
My Lords, as was pointed out by the noble Lord, Lord Kerr of Kinlochard, not one speaker has supported the Government’s position on these clauses. The only person who is going to speak in favour of the Government is the Minister. Surely the Government must realise what the Committee’s view is of these provisions.
In the debate on the Nationality and Borders Bill, we discussed the importance of a period of recovery and reflection for victims of modern slavery. For example, those traumatised often do not have a clear recollection of what has happened to them until after they recover. They cannot co-operate with the police until they have had a period of recovery; it is counterproductive to remove that provision.
In the remarks made by my noble friend Lord Purvis of Tweed on a previous group, we heard a clinical dismantling of the government case that the protections afforded by the Modern Slavery Act are being abused. It does not stand up to scrutiny. In previous groups, we also discussed how unlikely it was that victims would support a prosecution if they were removed from the UK. As the noble Lord, Lord Morrow, said, what will the impact of these measures be on tackling modern slavery?
We all want to see the prosecution of criminals involved in the exploitation of vulnerable people, whether they are children or vulnerable people trafficked into this country, but what assessment have the Government made of the impact on the likelihood of such prosecutions? How can all victims of modern slavery who arrive in the UK through what the Bill calls irregular routes be considered a threat to public order? We know how children can be groomed and coerced into committing offences—as so many children with British citizenship have been in connection with county lines drug dealing, for example—yet the Government want to disqualify from protection non-British children who could be in a similar position.
As the noble Lord, Lord Coaker, said, Clauses 21 to 28 remove all protections from victims of modern slavery who arrive irregularly, making it more difficult to prosecute the criminals exploiting vulnerable migrants, including children. If the noble Lord, Lord Macdonald of River Glaven, with all of his experience as a former Director of Public Prosecutions, is telling us that this will have a devastating impact on the police’s ability to tackle these issues, the Government should surely be paying attention. The noble Lord, Lord Carlile of Berriew, outlining the amendments of the noble Lord, Lord Alton of Liverpool, talked about witnesses of modern slavery not feeling safe in giving evidence against offenders.
The other important question raised by these amendments is when a new Independent Anti-Slavery Commissioner will be appointed. Will it be at the same time as the Government respond to the Joint Committee on Human Rights’ report on the Bill? They say that will be in August, when the danger of the Bill being criticised by such an independent commissioner will have gone.
What assessment has been made of how safe the countries in Schedule 1 are for victims of modern slavery? As the right reverend Prelate the Bishop of Durham said, there is a bigger problem with modern slavery in Rwanda than in this country, yet this Government are proposing to send victims of modern slavery to that country.
My noble friend Lady Hamwee drew attention to the excellent report of the Joint Committee on Human Rights, published on the weekend. It entirely supports the position taken by these Benches in opposing all clauses in the Bill, including those in this group. Clauses 21, 25, 26 and 28 undermine the Modern Slavery Act without justification and should not stand part of the Bill for the reasons powerfully explained by noble Lords on all sides of this Committee, including in the very powerful contributions of the noble Lords, Lord Randall of Uxbridge and Lord Cormack. I pay tribute to the long and continued dedication of the noble Lord, Lord McColl of Dulwich, in this area.
The amendments in this group, while commendable, would not remove the dangers to the victims of modern slavery proposed by this Bill. That is why these clauses should not stand part.
The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)
My Lords, as I have repeatedly set out, we need bold and radical action to tackle the dangerous, illegal and unnecessary crossings in the channel. We will deter such crossings only if those who would seek to make them know that they will not be able to build a life in the UK. Instead, they would be liable to be detained and swiftly removed. To achieve this, it is necessary not only to make asylum and human rights claims inadmissible but to withhold modern slavery protections from those who meet the conditions in Clause 2.
As was set out earlier in response to amendments tabled by the noble Lord, Lord Hunt of Kings Heath, the national referral mechanism presents clear opportunities for abuse by those who would seek to frustrate removal. We have heard many statistics in this debate, and, of course, when the noble Lord, Lord Coaker, and others quote from official statistics I do not dispute the figures, but let me add some more which have not been mentioned. It is worth repeating the statistics which demonstrate the sharp rise in NRM claims, where someone is detained pending removal. The NRM referral rate for people arriving in the UK on small boats and being detained for return has risen from 6% of detentions in 2019 to 73% in 2021. In contrast, where people were not detained for return, less than 3% of people who arrived in 2021 were referred to the NRM within three months of entering the UK. I suggest that these figures cannot be ignored.
Clause 21 is firmly based on the provisions of the Council of Europe Convention on Action against Trafficking in Human Beings, or ECAT. Article 13(3) expressly provides that states are not bound to observe the minimum 30-day reflection and recovery period if
“grounds of public order prevent it”.
The noble Lord, Lord Carlile, and the noble Baroness, Lady Ritchie, omitted to mention this provision when they stated the other provisions of ECAT.
The measures in the Bill are intended to deal with the immediate and pressing broader public order risk arising from the exceptional circumstances relating to illegal entry into the UK, including the pressure on public services and the threat to life arising from the dangerous channel crossings. We recognise the exceptional nature of these provisions. That is why Clause 25 includes a sunsetting provision such that these provisions will cease to operate if not extended two years after commencement.
Lord Carlile of Berriew (CB)
The Minister is making a very bold proposition when he says that Article 30 gives the Government an excuse to ignore ECAT. Can he give us examples of public order events which justify that bold, and in my view unjustifiable, statement?
Lord Murray of Blidworth (Con)
It was Article 13(3). The events which the Government say warrant the grounds of public order which prevent observance of the 30-day reflection and recovery period are the conditions which I identified earlier in relation to the pressure placed on public services and the threat to life arising from the dangerous channel crossings.
I do not propose to address all the amendments individually, suffice to say that where the Secretary of State is satisfied that an individual is participating in an investigation or criminal proceedings relating to their alleged exploitation, and considers it necessary for them to be present in the UK to provide that co-operation, and considers that their co-operation outweighs any significant risk of harm to the public they may pose, that individual will be exempt from the disqualification. This allows the Government to protect against the threat to public order arising from the current circumstances relating to illegal entry into the UK, while also ensuring that investigations can be progressed to bring perpetrators to justice. By one means or another, the amendments seek to negate, or at least roll back, the intended effect of the provisions in Clause 21 and subsequent clauses.
Lord Cormack (Con)
What does my noble friend say to the statement that what is being done here is in effect dismantling a world-renowned piece of legislation—the Modern Slavery Act—passed only eight years ago?
Lord Murray of Blidworth (Con)
I am afraid I do not agree with my noble friend. These provisions are strictly limited to deal with the present emergency that we face.
As with the amendments to the other parts of the Bill, if we add exceptions, exclusions and exemptions, we will significantly undermine the efficacy of the Bill overall and the scheme will be undermined, making it unworkable. The Bill will then not deliver on its stated purpose.
Having said that, I want to touch on some of the specific amendments. However, before I do so, I will respond to the request of the noble Lord, Lord Coaker, to give an update on the economic impact assessment. At the risk of repeating myself, it remains the Government’s intention to publish the document in due course. However, I undertake to provide an update to the House before the first day of Report.
In relation to Amendment 86, put forward by my noble friend Lord Randall, I point out that for the cohort caught by the Bill—particularly those apprehended in Kent, having crossed the channel in a small boat—few will be victims of exploitation in the UK. It is important to remember that victims of modern slavery who are British citizens, or those who are in the country illegally having overstayed their visa, will not be caught by the public order disqualification. Similarly, unaccompanied children who are not to be removed under the power conferred in Clause 3 will continue to benefit from NRM support—a point raised by the noble Lord, Lord Coaker. As for others who are to be removed pursuant to the duty in Clause 2, their relocation to a safe third country will remove them from their exploiters.
I remind the Committee that our partnership agreement with Rwanda includes express provision for the Rwandan Government to take all necessary steps to ensure that any special needs that may arise as a result of a relocated person being a victim of modern slavery are accommodated. This should not be downplayed, as the right reverend Prelate the Bishop of Durham suggested. I can also assure my noble friend that we will continue to engage with the police and the CPS as we prepare the statutory guidance provided for in Clause 21(6). I reiterate what my right honourable friend the Immigration Minister said at the Commons Report stage:
“we will look at what more we can do to provide additional protections to individuals who have suffered exploitation in the UK”.—[Official Report, Commons, 26/4/23; col. 781.]
That remains the Government’s position.
I turn to Amendment 88. It is the unfortunate reality that criminal gangs are good at adapting to changes in the law to continue their nefarious activities. It is therefore not unreasonable to assume that such an amendment may result in a change of methodology by the people traffickers, either by targeting vulnerable women to a greater extent or by encouraging illegal migrants to make false claims to seek removal under the Bill.
Amendment 90, spoken to by my noble friends Lord Randall and Lord McColl, relates to the presumption that it is not necessary for a person to remain in the UK to co-operate with an investigation. It is one of the enduring legacies of the Covid pandemic that much more can now be done remotely. We all see this in the changes to the way we work. Even now, some Members of your Lordships’ House take part in debates by videolink. It is simply no longer the case that a victim of crime needs to be in face-to-face contact with police or others to assist with an investigation. There is no reason why, in the majority of cases, such co-operation cannot continue by email, messaging and videoconferencing. The presumption in Clause 21(5) is therefore perfectly proper.
We have provided statutory guidance to support decision-making by caseworkers when determining if there are compelling circumstances why the presumption should be set aside in any particular case. We are considering carefully the recommendation of the Delegated Powers Committee that such guidance should be subject to parliamentary scrutiny. Given this, I am not persuaded that the substitution of a regulation-making power would make a material difference.
The Lord Bishop of Durham
Sorry—it has taken me a little while to contemplate but is the Minister effectively saying that the use of video and email and so on is as good as in-person interviewing and in-person interventions? I really think that needs to be rethought.
Lord Murray of Blidworth (Con)
As the right reverend Prelate will appreciate, it is the experience of litigators that the use of remote facilities has become very commonplace.
The Lord Bishop of Durham
With respect to the Minister, that is not quite what I was asking. Absolutely, it is happening, but is it as effective?
Lord Murray of Blidworth (Con)
That all depends on the facts of each particular case, As I say, that is what will be considered in accordance with the guidance that I have just described.
Where the Home Secretary concludes it is necessary for someone to remain in the UK for the purpose of co-operating with a law enforcement agency, the continued need will be kept under review. Section 65 of the Nationality and Borders Act already provides for the grant of limited leave to remain in such cases. The length of such leave should be considered on a case-by-case basis. As such, it would not be appropriate to provide for an arbitrary minimum period of 30 months, as Amendment 89 seeks to do.
Lord Macdonald of River Glaven (CB)
Would the Minister accept that, given the extreme sensitivity of persuading victims in these categories of offences to co-operate in the first place, and the almost full-time pastoral care that they have to be given in the approach to a trial, doing all of this from the countries to which these people are likely to be sent is going to be inordinately difficult?
Lord Murray of Blidworth (Con)
I am afraid I do not accept that, because of the advances in technology that I have already described. That is the position in respect of Amendment 89.
Lord Paddick (LD)
Does the Minister not understand that for a victim of crime who is in effect persecuted by the Government by being sent to another country, that is going to have an impact on their likelihood of co-operating with the Government in order to prosecute traffickers?
Lord Murray of Blidworth (Con)
One would hope that a victim of trafficking would want to facilitate the prosecution of their traffickers. It is clear, for the reasons I have already set out, that we cannot afford to create any loopholes or exclusions from the scheme.
Amendment 92 seeks to limit the countries to which a person can be safely removed. There is no one international standard to assess a country’s ability to provide support for victims, so we should not be tied to removing potential victims of modern slavery only to signatory countries of the ECHR or ECAT. In addition, this amendment would have the perverse effect of preventing the return of potential victims to their home country where it was safe to do so; I am sure the noble Lord would not want such a block to apply. As I have indicated, our partnership with Rwanda has in place provisions for supporting survivor recovery needs.
Lord Carlile of Berriew (CB)
Before the Minister sits down, will he do the usual thing, which is to answer reasonable questions that were asked of him, particularly the question I asked about the due diligence carried out in preparation of Schedule 1 and how advice was obtained as to whether it was right to put almost entirely unqualified entries into that schedule?
Lord Murray of Blidworth (Con)
I had in mind the sage words of the noble Baroness, Lady Smith, in the House last week. As the noble Lord will recall, the origins of Schedule 1 were canvassed at length by the Committee in the previous group. The countries listed in the schedule are an amalgam of previous pieces of legislation where the safety of those countries has been established in that legislation.
Baroness Ritchie of Downpatrick (Lab)
My Lords, earlier when referring to ECAT provisions in relation to the amendments I brought forward and the comments made by the noble Lord, Lord Carlile, the Minister seemed to say, and I would argue, that applying Article 13(3) of ECAT to a large group of people would go against the spirit and character of ECAT. I think it was never intended to apply to a group but to individuals and that the breadth of application coming from the Minister is a bit of stretch, so I ask him to consider that matter again and maybe come back on Report with an amendment similar to the ones that I proposed.
Lord Murray of Blidworth (Con)
Obviously I hear what the noble Baroness says. Clearly the public order disqualification is capable of being applied in the way that the Government suggest it is here, and of course it is also a matter of individual application—but no doubt those in the department will read what the noble Baroness said. For all those reasons I invite the noble Lord to withdraw the amendment.
Lord Randall of Uxbridge (Con)
I wonder whether my noble friend would consider my invitation. If I can arrange it, will he come with me to meet a victim of modern slavery, so he can actually see the people we are talking about who would be potentially affected by this?
Lord Murray of Blidworth (Con)
Well, I would be very happy to meet the noble Lord, with or without such a victim, to discuss his amendment. I would be happy to do that.
Lord Randall of Uxbridge (Con)
I asked the Minister whether he would meet a victim of modern slavery.
Baroness Bennett of Manor Castle (GP)
My Lords, I asked the Minister three questions and, not to my great surprise, I did not get answers to any of them. To focus on one of them: will the famous impact assessment include consideration of the damage to UK communities—or “potential damage”, if the Minister will not acknowledge the damage—done by the failure to be able to prosecute illegal enterprises engaging in modern slavery in the UK?
Lord Murray of Blidworth (Con)
I am afraid I cannot comment on what might or might not be in the impact assessment.
Lord Coaker (Lab)
My Lords, rather than make a lot of different remarks, let me just say this: in my honest opinion, this is no way to do a Bill, particularly one as contentious as this. Numerous questions have been put by Members of your Lordships’ Committee, which the Minister has failed to address. How can we do our job if the Minister fails to engage with what is being said?
For the Government to turn around and say, in light of what the noble Lord, Lord Carlile, and many other noble Lords have said, that it may be that the impact assessment is available on the first day of Report, is totally and utterly unacceptable. It is simply not good enough for all of us who are considering amendments. Rather than dealing with many of the points put forward, I will say that it is clear that there will be a considerable number—to say the least—of amendments on Report. How can we judge those amendments—how they should be phrased and determined, and which ones are more important—if we have no impact assessment? It is frankly unbelievable to be left in that situation and it is no way to do a Bill.
I read—I did read much of it; my noble friend Lady Kennedy will be pleased—an excellent report by the JCHR. I am going to quote from the summary on the “Role of the JCHR”, because I could not believe it:
“We would have liked the opportunity to have questioned the Home Secretary about this. We invited the Home Secretary to give evidence on the Bill and she was unable to do so”.
This is a flagship Government Bill dealing with something which, as we have just been told, allows derogation from Article 13 of the European convention because the continued small boat migration is a threat to public order. Yet the Home Secretary cannot be bothered to go to the JCHR.
The report goes on to say:
“We also wrote to the Home Secretary with detailed legal questions on the Bill in order to inform our report and requested a response by 24 April 2023. The Home Secretary belatedly responded to us by letter dated 2 June 2023. We therefore did not receive her response before the Bill commenced Committee Stage in the House of Lords. The Home Secretary did not give any explanation for her undue delay in responding to our letter and many of the questions remain unanswered”.
To pick up the point made by the noble Lord, Lord Cormack, the report then says:
“We consider both the delay and her lack of explanation for the delay to be discourteous not just to this Committee but to both Houses of Parliament”.
I could not agree more with that.
We are supposed to be the revising Chamber. The Government lecture us and will say that the elected Government of the day have a right to get their legislation through. Many of us, including me, try to protect that convention, but it is based on a two-way process. That two-way process involves the Government giving all of us the proper information to make our decisions. It depends on Ministers answering questions; it depends on impact assessments being made available so that we can make our judgments. It does not depend on Ministers saying that they think a noble Lord is wrong; that somebody does not get it; somebody is misreading the information; somebody does not understand the statistics. It depends on detailed, logical argument and debate.
I will tell you what that leads to: it leads to better policy. It means that you do not have the ridiculous situation of the Government abandoning a key part of a Bill they only passed a few months ago by Written Statement a couple of days ago. That is where we will get to with this Bill if it is not properly considered. Even under the Government’s own terms it will not work. I say to the Minister that it is not good enough and he needs to reflect on what he is going to do about it.
Baroness Ludford
“Early access to legal aid(1) After paragraph 32A (victims of slavery, servitude or forced or compulsory labour) of Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 insert— “32B “(1) Civil legal services provided to an individual who is subject to removal to a third country under the Illegal Migration Act 2023, or who might reasonably suspect they are subject to removal under that Act, in relation to referral into the national referral mechanism and connected immigration advice and representation, where there is no other provision for this within the scope of legal aid.General exclusions(2) Sub-paragraph (1) is subject to the exclusions in Part 2 of this Schedule.Specific exclusions(3) The civil legal services described in sub-paragraph (1) do not include—(a) advocacy, or(b) attendance at an interview conducted by the competent authority under the national referral mechanism for the purposes of a reasonable grounds decision or a conclusive grounds decision.”(2) In regulation 11(9) of the Civil Legal Aid (Merits Criteria) Regulations 2013 (S.I. 2013/104) (qualifying for civil legal services: cases in which merits criteria do not apply), at end omit the full stop and insert—“(e) or, for an individual who is, or might reasonably suspect they are, subject to removal to a third country under the Illegal Migration Act 2023, in relation to any matter described in paragraph 32B of Part 1 of Schedule 1 to the Act (civil legal services provided to an individual in relation to referral into the national referral mechanism).”(3) In regulation 5(1) of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 (S.I. 2013/480) (exceptions from requirement to make a determination in respect of an individual’s financial resources), after paragraph (r), omit the full stop and insert “and,(s) for an individual who is, or might reasonably suspect they are, subject to removal to a third country under the Illegal Migration Act 2023, civil legal services described in paragraph 32B of Part 1 of Schedule 1 to the Act (civil legal services provided to an individual in relation to referral into the national referral mechanism).””Member’s explanatory statement
This new clause would give individuals subject to, or who might reasonably suspect they are subject to, removal to a third country under this Act access to early specialist legal advice, which is not means- or merits-tested, allowing for informed consent to a trafficking referral. The intention is that potential victims of modern slavery or human trafficking in that position will be able to understand what the NRM is and what it does, and provide informed consent to be referred into it. This expands the support available for advice on referral into the NRM, which is currently only available if you have a matter that falls within scope of certain types of legal aid.
Baroness Ludford (LD)
My Lords, as was mentioned, the noble Lord, Lord Alton, is not able to be here today, but I join in the tributes paid by the noble Lord, Lord Carlile of Berriew, about his excellent work on the Bill. He very much regrets that he is not able to be here.
The noble Lord, Lord Coaker, has slipped out, but I felt the challenge “follow that”. I fully subscribe to the fantastic riposte that he gave to the Minister. I am afraid I will speak quite a few times today; that is how the cookie has crumbled for the parts of the Bill that I have got involved in—all my prizes are coming at once. I am afraid I do not apologise for that. In response to my noble friend Lord Newby last week, the Chief Whip complained about alleged repetition, including from these Benches. I may not be alone in having heard Dr Hannah White of the Institute for Government on the “Westminster Hour” on the radio last night. She said that, in the other place, the Bill had two days in Committee of the whole House—that is not an ideal process. She said that, normally, you would have expected two weeks in Committee in the past, under the normal processes—
Baroness Ludford (LD)
I hear the noble Lord, Lord Deben, who knows those processes. They would take evidence and scrutinise line by line, rather like how we are doing now. The Bill did not get that scrutiny in the other place, so it falls to us. Indeed, Dr White said—I hope I do not paraphrase her wrongly—that the Commons are getting used to kicking the scrutiny down to our Chamber. It seems that the Government are trying to squeeze scrutiny out of us and to bully us into not raising issues here. It comes to something when we poor, aged people—perhaps I had better not go on—are the ones who have to stay until 4.15 in the morning because the Government are trying to bully us out of raising essential issues. These included arbitrary detention powers last week—nothing could be more historic in terms of the dangers of executive overreach. So we have to go on a bit, I am afraid.
Lord Bach (Lab)
My Lords, I am proud to have signed Amendment 120 in the name of the noble Baroness, Lady Ludford. I will address my own Amendment 120A, as well as the Clause 4 stand part notice, which is part of this group.
There are many who believe this Bill to be the worst introduced by His Majesty’s Government, formerly Her Majesty’s Government, since they came to power 13 years ago. I agree, although, in my view, the Legal Aid, Sentencing and Punishment of Offenders Act—LASPO, as mentioned by the noble Baroness—which achieved its 10th anniversary on 1 April, comes a close second. That Act, as the Committee knows, took away ordinary people’s ability to access justice in the whole field of social welfare law and offended against fundamental rule of law principles. One of the few areas that retained legal aid in scope was asylum and, to an extent, immigration—even though that has been whittled down over the last 10 years, with dire consequences for the provision of advice and lawyers dealing with asylum cases.
Clause 54, introduced on Report in another place, allows for legal aid to be given to asylum seekers in respect of the Bill; in other words, it brings it within scope. No doubt His Majesty’s Government will claim that this is the act of a principled and caring Government, even though it should be noted, as the noble Baroness, Lady Ludford, just mentioned, that, as drafted, it ensures the provision of civil legal aid services to P only on receipt of a removal notice. It does not confirm or secure access to free legal aid in relation to an asylum or HR claim.
More important than that, however, is the dangerous lacuna in Clause 54. There is an overwhelming danger—almost a certainty, I argue—that the right to legal advice and legal aid will cover up the reality of its actual provision. This is the reason for my amendment. Thanks to the organisation BID, my amendment would impose a duty on the Lord Chancellor to secure civil legal aid services within 48 hours of detention. Without the amendment, there is very little chance that those detained will receive the advice that the law says they are entitled to.
Why do I say this? Here, I am grateful to Jo Wilding. Figures published following a freedom of information request by the Ministry of Justice suggest that in 2021, there was a gap of at least 6,000 people between the number of new asylum applications and the number of new immigration and asylum matters that were actually opened, and for which legal aid was given.
Baroness Lawlor (Con)
My Lords, Clause 54 provides that, under the Bill, recipients of removal notices will have access to certain civil legal services. As your Lordships have rightly pointed out, this would bring them within the scope of legal aid and allow access to legal services in relation to removal notices without the application of the merits criteria and within the timeframe of the Bill.
Despite my respect for the expertise and knowledge of the noble Lords who have brought forward these amendments, I cannot support them. I am concerned that, in extending further the provision of legal aid available under the Bill or the duties under it, Amendments 92A and 120—and Amendment 120A, in its own way—would add more cost and compliance burdens to a system that has already become far less overarching than was envisaged when it was set up.
In my view, legal aid needs to be looked at in its entire context. As matters stand, legal aid is not given in many sorts of cases. Schedule 2 to the Access to Justice Act 1999 excluded categories that had hitherto been included. The LASPO Act 2012 went far further, in that there was a significant removal of cases; indeed, all cases other than those mentioned in its Schedule 1 were removed. This means that cases historically funded by legal aid in this country have been removed.
This affects many people who have lived and worked here—and, indeed, those who have fought wars for this country. Their cases are no longer eligible for consideration for legal aid, which might strike them as unfair and disproportionate. I agree with the noble Baroness, Lady Ludford, that the system must be seen to be proportionate and fair as well as efficient. However, many cases where a UK citizen may have a just claim or wishes to defend a right are now excluded. For example, in cases of medical negligence, claims are no longer permitted other than those relating to a child who suffers a severe brain injury during pregnancy, childbirth or shortly afterwards.
Legal aid has historically played an important part in poor persons—I am using the words used until 1950—being able to pursue their legal rights without being charged fees, albeit with charges and restrictions made from time to time until 1949, when the system as we know it today began. That change extended eligibility to people of small or modest means, with free aid up to a limit and a merits test for civil cases. As we have heard and as we know, that system has all but disappeared. Means testing is more severe. Some categories have been removed while others have been added. The upshot is that access to legal aid has been reduced significantly. I agree with much of what the noble Lord, Lord Bach, said about how the system has changed dramatically.
Clause 54 will add another category to the overstretched system. There are reasons for that but, for the reasons I have given, I am not in favour of extending this beyond what is proposed in the Bill.
Lord Paddick (LD)
My Lords, as my noble friend Lady Ludford said, proper scrutiny of the Bill rests with this House, as the Commons was not given sufficient time to scrutinise it, so that is what we are determined to do.
Bearing in mind the draconian measures in the Bill, proper legal aid must be provided, including for those referred to the national referral mechanism, particularly in light of the changes introduced by the Nationality and Borders Act that adjusted the reasonable grounds threshold and the standard of proof required—and not just to those served with a removal notice. We also support Amendment 120A to ensure that legal aid is provided, rather than just allowed.
In response to the noble Baroness, Lady Lawlor, it seems an extraordinary argument to say that, because British people are denied justice and cannot access legal aid, people seeking asylum should also be deprived of justice. Surely, the answer is to provide justice to everyone who needs it.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this group of amendments looks at legal aid in the context of the Bill. Prior to a removal notice, the Bill does not provide legal aid to a person in detention in England and Wales. There is no provision for a person awaiting a decision on removal in Northern Ireland and Scotland, so I wonder whether the Minister can say something about the position in Northern Ireland and Scotland.
The Bill provides an extremely short timeframe of eight days for an individual to seek legal advice and representation and provide sufficient instructions for a representative to lodge a suspensive claim with compelling evidence against removal to a third country. The non-government amendments in this group would expand legal aid provisions to persons potentially facing removal. The government figures suggest that around half of asylum seekers already do not have access to legal aid advice, with advice being much harder to obtain outside of London. My noble friend Lord Bach amplified that point very powerfully, when he gave the figure of the gap of 25,000 between the numbers of asylum applicants and legal aid provisions in 2022, showing that about 50% of asylum applicants have no legal advice.
My noble friend also gave a powerful exposition on the background of legal aid following the cuts we saw with the LASPO Act. The noble Baroness, Lady Lawlor, also acknowledged those cuts, which have been extended from when the LASPO Act originally came into force. As my noble friend Lord Bach summed up very effectively, the overwhelming danger of Clause 54 is that it becomes a sham and a fig-leaf; the rights may be there on paper, but they will never be provided in practice. The amendments in this group are seeking to ameliorate that fear.
The noble Baroness, Lady Ludford, also summed up this group of amendments very effectively, when she talked about the importance of legal aid for making fair decisions. I agree with her that this will reduce appeals, will let applicants properly understand the process of what is happening to them, and, perhaps above all, will uphold the UK’s reputation as a country which is ruled by law, as people need to understand the laws being applied to them.
This has been a relatively short group, but it goes to the heart of the Bill, because it concerns what is available in practice to people coming over and applying for asylum. They need to understand the situation they are in and that they will be treated fairly. Reflecting on my own time sitting in courts, I say that people may not like the decisions being made, but it is a much better position when they understand them. It will resonate beyond the courtroom itself, if people understanding the decisions being made about them.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, it is always a rewarding experience to find oneself largely in agreement with some of the sentiments that have been expressed. On the issue of legal aid, Clause 54 ensures that individuals who receive a removal notice under the Bill have access to free legal advice before removal and, in so providing, it is one of the keystones of the Act. It is absolutely essential that free legal advice is available to persons before removal. That is important for the reasons that have just been given. It is important that people understand the process and that it is a fair and efficient process. No one would disagree with any of those sentiments expressed in the Chamber today.
It is important to emphasise that, unlike most civil legal aid, legal aid in the context of the Bill is being made available without a merits test, nor a means test—as a matter of statutory instrument, that will be provided in due course.
To answer the first question from the noble Lord, Lord Ponsonby, we are in close discussions with the authorities in Northern Ireland and Scotland, where I anticipate the position will be exactly the same as it is in England but, obviously, that has to be covered. As has been rightly said, legal aid is, in the context, essential for speedy but fair decision-making. Those basic points are essentially common ground.
I will now deal briefly with the amendments. Government Amendment 119A in this group simply corrects the references to the clauses in the Bill under which advocacy in the Upper Tribunal can take place, and adds a reference to the tribunal procedure rules, since the clause as tabled in the other place at a late stage needs to be corrected in those technical aspects. That is all that Amendment 119A is.
I turn now to Amendment 92A, tabled by the noble Lord, Lord Alton, and moved by the noble Baroness, Lady Ludford, which seeks to make provision for legal aid for potential victims of modern slavery subject to removal for possible referral to the NRM. In the Government’s view, this amendment is not required, as Clause 54 already provides free legal advice for anyone issued with a removal notice under the Bill, and that legal aid is available irrespective of the merits or means.
The Committee has just accepted that Clause 21 stand part of the Bill, so I respectfully say that it does not seem correct for me to reopen or rediscuss the various arguments which have been debated at length this afternoon in relation to modern slavery. In practice, if Clause 21 stands part of the Bill, as the Committee has just agreed, the basis for this amendment, in the Government’s submission, largely falls away and it is not at all clear that there is any remaining practical purpose in pursuing the amendment. That is the Government’s position on Amendment 92A.
As far as Amendment 120 is concerned, spoken to by the noble Baroness, Lady Ludford, which seeks to ensure the availability of civil legal aid services for various claims, challenges and legal proceedings covered by the Bill, the Government’s position is that Clause 54 already effectively provides for that. The Lord Chancellor already has a statutory duty to ensure that legal aid is made available to individuals where it is required under LASPO. By virtue of Clause 54, legal aid will therefore have to be made available to individuals in receipt of a removal notice, in relation to that removal notice, to take advice in making a suspensive claim either on factual grounds or on grounds of serious irreversible harm. This is, as I said a moment ago, an essential feature of the Bill to ensure fairness to those facing potential removal under the powers in the Bill. There are other existing provisions in LASPO that make legal aid available in relation to protection claims, human rights claims, modern slavery, detention and habeas corpus. But the key need here in this Bill is for legal advice before removal takes place and legal advice in relation to making a suspensive harm claim or a suspensive factual claim.
Finally, Amendment 120A tabled by the noble Lord, Lord Bach, who I know follows these matters with great interest and great integrity and has over the years been very concerned indeed about the provision of legal aid, highlights the practical importance of making sure legal aid actually is available. The same point has been made by the noble Lord, Lord Ponsonby, and others. That is a very important aspect that the Government and the Ministry of Justice in particular are fully seized of at the moment. As noble Lords can imagine, it provides a considerable logistical challenge, because it depends on a number of factors: where the potential removees or detainees are; how they can be accessed; who is going to provide the advice; whether there are enough people to do it; whether they are trained up enough; whether it can all be done in the short time limits provided by the Bill. Those are all matters with which the ministry is currently seized. We are working extremely closely with the Ministry of Justice and the Home Office to ensure that legal aid is really made available to those who need it. I venture to hope, most sincerely, that we are not in a position where any significant proportion of the persons concerned fail to get legal aid. It would not be acceptable, in the Government’s view, for very large numbers of people to be removed without the benefit of legal advice. It is a problem that the Government have to solve and are working to solve.
Lord Hunt of Kings Heath (Lab)
My Lords, I do not want to take us back to the impact assessment issue, but it would certainly be helpful to know before Report where the Minister’s department is going in relation to the work he referred to. We should have a much clearer idea, by the start of Report, as to the extent to which his department is able to give guarantees that a proper legal aid system would be in place, effective and able to operate.
Lord Bellamy (Con)
My Lords, I hear what the noble Lord says. It is an entirely reasonable question. I will take it back to the department and do my best to see how far we can satisfy that completely understandable request. The Government accept that legal advice should be available in practice and quickly, and they are working on that with intense attention at the moment but, in relation specifically to Amendment 120A, do not feel it is appropriate or feasible to provide for a statutory obligation to deliver within 48 hours, which is what the amendment calls for.
However, there should be a system that enables people effectively to take advice within the strict periods of time set out in the Bill, which are subject to extension—we do not yet know how that will work, but they can be extended by the Secretary of State and the Upper Tribunal. I hope your Lordships will accept that the general position on legal aid in Clause 54 is a positive provision in the Bill and that removing the means test and merits tests is correct in the circumstances. Properly administered and operated, this will be a very important safeguard for those affected by the provisions in the Bill. I hope the noble Baroness will withdraw the relevant amendment.
Baroness Ludford (LD)
My Lords, I thank the Minister for his reply. I welcome Clause 54 being put into the Bill—it is better than it not being there—but several problems arise. First, Clause 54 says in terms of LASPO only that:
“Sub-paragraph (5) does not exclude services provided to an individual who is subject to removal”.
It does not do anything to make sure that that legal aid for advice and representation will appear, which is the reason for the importance of the amendment from the noble Lords, Lord Bach and Lord Hunt of Kings Hunt, about a duty to provide legal aid, as there is no guarantee. There is also no guarantee that Clause 54 will deliver any legal aid before this Bill comes into force as an Act. What will the Government do in practice to deliver that legal aid?
Secondly, Clause 54 benefits only people who are subject to removal and have, presumably, already had a removal notice. The concern that motivated Amendment 92A was that it should be available not only to individuals who are subject to removal under this Act but to those who might reasonably expect that they would be. They ought to be able to get advice so that they can give informed consent to a trafficking referral; they need to know what the implications and consequences could be. With respect, I do not think the Minister covered either of those points.
Finally, we do not appear to be getting the message across that the better informed and supported people are, the greater the benefit to the Government will be in being able to have faster processes. Clearly, those processes are not working at the moment—we would not have this incredible, appalling backlog if everything was going swimmingly with processing efficiency. I cannot speak for the noble Lord, Lord Bach, but I think we are inspired by the idea that you could streamline the system and try to avoid delays in highways and byways if people were properly legally informed of their rights. The Minister is a lawyer, so I am sure he gets that point, although unfortunately I have not heard him express it. All that said, I beg leave to withdraw Amendment 92A.
Lord Coaker
Member's explanatory statement
This amendment seeks to remove the Bill’s restrictions on the provision of modern slavery support to those subject to the provisions in Clause 2.
Lord Coaker (Lab)
My Lords, I will not take a great deal of time on this group because quite a number of the points were made in the first group that we discussed today. This group deals with provisions relating to support. Clause 22 deals with the provisions relating to support in England and Wales, Clause 23 with support for Scotland and Clause 24 with support for Northern Ireland. My Amendments 93, 94 and 95, supported by the noble and learned Baroness, Lady Butler-Sloss, who has given her apologies today, seek to remove the Bill’s restrictions on the provision of modern slavery support for those subject to the provisions in Clause 2—blanket detention and removal. They would take out subsection (2) of the relevant clause.
Clause 22(2), and the equivalent points in Clauses 23 and 24 as they relate to Scotland and Northern Ireland, is an astonishing provision. It says that:
“Any duty under section 50A of the Modern Slavery Act 2015 (assistance and support) to secure that any necessary assistance and support is available to the person does not apply in relation to the person”.
Essentially, we are denying assistance and support to potential victims of slavery and trafficking. I cannot believe that we would want to do that, but there it is in the Bill. The noble and learned Baroness, Lady Butler-Sloss, and I simply want to take that out and at least try to understand what the Government’s logic is with respect to it. This provision means that you cannot be considered a victim, and if you are then you are denied any follow-on support or assistance.
Preventing support for all trafficked victims is disproportionate. As I said earlier—I will not repeat that debate—why not focus on improving administrative efficiency in the asylum system as a whole and the NRM? Currently, as was mentioned in the earlier group, victims of modern slavery are legally entitled to 30 days of support and protection from removal. That is only two days longer than the 28 days for which they are protected, but they are protected and supported to help them recover. It was said at great length, emphatically and well, by many noble Lords that providing victims with support is the only way to build trust and ensure engagement with law enforcement to help with the real criminals—the traffickers. It is also important to the victims in helping them to recover from their trauma.
Clauses 22 to 24 of the Illegal Migration Bill mean that, if you are trafficked into the UK, you will not be treated as a victim. I cannot believe that that is what a British Parliament would want. Nobody who enters the UK irregularly will be able to access support at any point, even if they are exploited in the UK—a point which the noble Lord, Lord Randall, and others made when discussing his amendment in the earlier group. If you enter irregularly at some point, and then become a victim of sexual exportation, child labour or forced labour, you will not be able to access any support to deal with that—and that is any irregular arrival, not just by small boats. What assessment did the Government make of the impact of this before stripping away all the support through the provisions contained in the Bill? What is their rationale for this? What assessment have they made of the numbers that may be affected by these changes—including the numbers referred to in the amendment by the noble Lord, Lord Randall, in the earlier group?
Do the Government not understand or believe that the consequences of this are that trafficked victims of modern slavery, forced labour and sexual exploitation, including children, will be left unsupported in a twilight world, with no money, no housing, no care and no personal support? As I have said before, do the Government themselves not recognise that what they are doing is quite extraordinary—to put it politely? They have included a sunset clause because they realise the extremity of these provisions in the Bill.
As your Lordships have heard and seen, the JCHR condemned this Bill in its recent report and called on the Government to change it. I ask a very simple question of the Government: if the Bill in its current form becomes an Act, how will we identify victims of modern slavery and trafficking? If we do identify them, what support are the Government intending to give them?
This is a significant group of amendments about providing assistance and support to victims of modern slavery and trafficking. The Government intend to take that support away. How can that be right?
Lord Weir of Ballyholme (DUP)
My Lords, as the proposer of Amendment 96, I have no problems with any of the other amendments in this group. I do not want to repeat the remarks of the noble Lord, Lord Coaker, but will deal specifically, albeit briefly, with Amendment 96.
This amendment looks at the level of support that human trafficking victims receive. As we discussed earlier, it is important that we, as a nation, approach that in a humane and compassionate manner. This amendment deals specifically with the position in Northern Ireland and with setting it at a higher bar than the Government are proposing, for a number of reasons.
First, the amendment reflects the devolutionary settlement for Northern Ireland. While migration and immigration are national issues, modern slavery and human trafficking specifically have been dealt with as a devolved matter and on a devolved basis. It is not something on which a uniform approach has been taken across the United Kingdom, and levels of support for victims in Northern Ireland is not something that has been dealt with in the abstract.
There are many occasions when in Northern Ireland we will seek exactly the same provisions as elsewhere or simply replicate or pay lip service to what is provided elsewhere by repeating it. This has been drilled down on two very detailed occasions in Northern Ireland. As I indicated earlier, we were the first part of the United Kingdom to have specific legislation on human trafficking through the human trafficking Act, which predated the Modern Slavery Act. There was a considerable amount of attention given to it then. In the sometimes febrile, cauldron-like atmosphere of Northern Ireland, it can be difficult to get consensus, but that was something on which there was broad consensus across the Assembly Chamber.
More specifically, in 2022, a major piece of legislation was brought by the Department of Justice. The justice Act dealt with two specific areas—in essence, a range of sexual offences and human trafficking. It was something that the Assembly, both legislatively and in the committee, looked at in considerable detail. I was a member of the Justice Committee when that was going through, and we took availability of the opportunity to get in a wide range of experts to give direct advice on what was needed specifically for Northern Ireland.
What has been put in place and will be enacted in Northern Ireland without this legislation has been designed specifically for Northern Ireland and its particular circumstances. It is one of those areas into which has gone a forensic level of detail. Unfortunately, the Bill would take us in a different direction and leave us with less protection and fewer resources for victims of human trafficking.
Secondly, there is currently some dispute between the Government and the Northern Ireland Human Rights Commission about the levels of obligation on this topic. We are in no doubt that across the board with this legislation, if it goes through in whatever form, it is likely to be challenged in the courts and to be the subject of litigation. Consequently, if we are to be stuck with it, the position where we can have the greatest level of clarity, certainty and agreement is preferable. If we can resolve that issue by way of the adoption of an amendment such as Amendment 96, it would remove the potential level of dispute. Faced with a choice between the Government’s position and that of the human rights commission, the human rights commission’s position would give greater protection and support for victims of human trafficking. If left with a choice as to what direction we go in, to provide that greater protection is the best possible solution.
Thirdly and finally, the amendment deals with the specific circumstances of Northern Ireland. Clearly, the issue of small boats has featured in a lot of the discussions around the Bill. Northern Ireland, I suppose, geographically in the United Kingdom is as far away from the shores of Kent as one can possibly get. On that basis, where we have small boats coming in, they tend to bring in fish rather than migrants. While the reality is that, as I am sure others have indicated, in many ways there is a common belief across this Chamber and another place that we need to seriously tackle the issue of small boats and clamp down on those exploiting people with that form of migration, with regards to human trafficking, small boats, as has been indicated, are largely a red herring when it comes to the issue of modern slavery. That is not the way that, largely speaking, human traffickers are bringing people to the United Kingdom, and certainly that is the case for Northern Ireland.
However, there is a concern about Northern Ireland’s unique geographical position, which is why we need a greater level of protection. The Prime Minister and others have highlighted the unique advantage of Northern Ireland in many ways, in that we have a border with the European Union and access therefore, through the common travel area, to the European Union, particularly the Republic of Ireland. We are also part of the United Kingdom, which means we have full access to the rest of the United Kingdom. There is a danger that human traffickers will see Northern Ireland as a potential best of both worlds, which will be to the detriment of Northern Ireland and particularly of those who are going to be transported by human traffickers. That is a danger that we need to see off, and the fact that there has been a considerable increase in the number of victims of human trafficking referred to the NRM from Northern Ireland shows that this is something that human traffickers are alive to.
We all hope to reach a day in this society when the number of victims of human trafficking, in Northern Ireland or elsewhere, is set at zero, but we are living, unfortunately, in a world where this is an increasing crime rather than one that is reducing. The level of resources and support that need to be given to victims potentially coming to Northern Ireland has to act as a support for the victim but has also to act as a virtuous circle, because the greater the level of support and resilience that we can give to those victims, the better chance we have of catching the perpetrators and preventing this in the long run. Therefore, I urge the Committee to support the amendment in my name and that of my noble friend Lord Morrow.
Baroness Bryan of Partick (Lab)
My Lords, I support Amendment 94 and the intention of the noble Baroness, Lady Hamwee, and the right reverend Prelate the Bishop of Bristol to oppose Clause 23 standing part. I shall concentrate on the Bill’s implications for the Scottish Parliament, as it will bring some of the most offensive parts of this legislation relating to victims into Scotland.
Devolution Guidance Note 10 states that a Bill requires the consent of the Scottish Parliament if it
“contains provisions applying to Scotland and which are for devolved purposes, or which alter the legislative competence of the Parliament or the executive competence of the Scottish Ministers”.
The Lord Bishop of Durham
My Lords, I rise to support the removal of Clauses 22 to 24 and 27, as proposed by the noble Baroness, Lady Hamwee, and my right reverend friend the Bishop of Bristol. As the noble Lord, Lord Coaker, noted, many of the arguments are similar to those related to Clause 21, so we will not repeat them.
Clauses 22 to 24 carry through the logic of Clause 21 and remove protections and support from those who, crucially, have already been identified and assessed as having reasonable grounds to be considered a victim of trafficking or modern slavery. These victims are not self-identified or -assessed. They have to be referred by a first responder agency, such as the police, and assessed by the competent authority.
The insidious nature of applying these provisions retrospectively is that there are people now in safe houses who are receiving specialist support to rebuild their lives or to build a legal case against their abuser that might be used by law enforcement. To have those protections and support removed from them before a conclusive grounds decision can be reached on their case seems cruel. Someone who has potentially just escaped an abusive situation and has been assessed by a first responder and the Home Office as having a reasonable case and who is for the first time receiving support from a specialist agency could be told out of the blue that support is withdrawn and they are subject to detention and removal. To deter one group of people, we will wash our hands of a much larger group who did not arrive by boat or even necessarily of their own volition.
The long and short of these clauses is that to weed out an unknown and unproven level of abuse, and without any evidence that it will deter Channel crossings, we will be simply abandoning victims. We will be doing so in a thoroughly dramatic and cruel way by withdrawing support that has been offered. I cannot see this is justifiable, still less desirable, and I ask the Minister to consider the clauses in their entirety.
Baroness Hamwee (LD)
My Lords, I am not going to repeat the points that I made on the first group because they apply in a very similar way to the amendments in this group, which in our case amounts to opposition to the clauses standing part of the Bill.
In the first group, I strayed into Clauses 25 and 26, which should really be here—the revolving door of a revolving sunset. A point I did not make was how much scope the Secretary of State has to keep on altering the direction of how things go with minimum scrutiny because, to me, scrutiny should include an opportunity to make changes. So much is dealt with by regulations. All the clauses on modern slavery are part of a whole, which, as a whole, we oppose. The Bill does nothing to tackle modern slavery and trafficking, does away with support for many victims and damages the UK’s reputation. Like the noble Lord, Lord Randall, who spoke earlier, I do not much like the term “world leading”, but that was what people were saying of us not so very long ago.
Baroness Kennedy of The Shaws (Lab)
My Lords, a number of years ago, I chaired an inquiry in Scotland for the Equality and Human Rights Commission of the United Kingdom to look into the position of trafficking in Scotland because it was a surprise that at that time there had not been any prosecutions. Was this because there was no problem in Scotland, or was something happening with regards to investigations?
I want the Committee to know that after many years of practice at the Bar, doing some of the most shocking and desperate cases, the experience of chairing that inquiry into modern slavery was revelatory to me in hearing evidence—particularly, of course, from women who had been sexually used, and used in the most horrifying ways, where their whole days were spent servicing men. Afterwards, they needed to be looked after, cared for and encouraged to believe that their families back in the countries from which they had come would not be punished if they were to testify in a court of law. The threats that they had experienced were of such a kind that they lived in terror of those who had victimised and trafficked them.
I really do feel—I heard earlier one of the Conservative Back-Benchers asking the Minister whether he had ever met anyone who had been trafficked—that meeting those who have been trafficked is a shocking business. It also goes on to those who, for example, are subjected to slavery within the domestic environment, who are worked almost to death. They are brought over from other countries, live in households in which they are expected to get up at the crack of dawn and work through until the wee small hours of the following day, and are not rewarded—their wages are supposed to go to their family back somewhere else. The accounts that one hears are just shocking.
The fear that people have, which has to be catered for in having them give testimony in a court of law against those who have been their traffickers, is such that to be removing all of that is just shocking. It is unbelievable to people in other parts of the world. My work has now changed; it is now in international law, and everywhere I go people are shocked by Britain, which led the way on this and was so inventive in creating this legislation. Other countries are now saying “What is Britain thinking about?”, and we are really uncertain as to what the Government are thinking about.
Lord Morrow (DUP)
My Lords, I will speak very briefly as a co-signatory to Amendment 96, tabled by the noble Lord, Lord Weir. I suspect it will not surprise anyone in your Lordships’ Committee that I have a real passion about modern slavery. I had the experience on one occasion of meeting a victim, and I listened to a story that I was never prepared for.
What that victim told me about how she was treated was quite horrendous. She was treated as a commodity, with no respect; indeed, she did not even get food, never mind anything else. I have seen some difficult cases in all my years in politics because I have been in it nearly as old as I am; it seems that way. But the day that lady came to Stormont, met me and told me her horrendous story, I said that as long as I live, I will always make an effort to do something, moderately little as it may be, to fight this awful cancer of human trafficking. So it is extremely disturbing, as I said at Second Reading, that the plans of the devolved Administrations and their modern slavery strategies are now undermined by the Bill.
When I first consulted on my Private Member’s Bill in the Northern Ireland Assembly in 2012—it became the trafficking Act in January 2015—it was shortly after the UK had signed the EU trafficking directive, and a significant part of my Bill was to ensure that the rights within the directive could be enacted in Northern Ireland. At Second Reading of my Bill, nearly 10 years ago now, I said that the directive
“makes a number of effective proposals, which, if we choose to put them into law, would have a positive effect for vulnerable victims. Many of the proposals in the Bill directly seek to implement the directive into our law.”
I went on to say that the Assembly
“should seek fulsome implementation of the directive and, indeed, the Council of Europe Convention on Action against Trafficking in Human Beings”.
I believe that the Assembly met that objective when the Act was passed in January 2015. It is therefore with deep regret that, 10 years on from my Second Reading speech, I am seeing that good work being undone, justified by a tenuous interpretation of the European trafficking convention, which the noble Baroness, Lady Ritchie, made reference to earlier—a view which was described as “untenable” by the Joint Committee on Human Rights in its report published at the weekend.
Lord Paddick (LD)
My Lords, as the noble Lord, Lord Coaker, said when he introduced this group of amendments, it is quite extraordinary to deny assistance and support to the victims of modern slavery, as provided by Section 50(1)(a) of the Modern Slavery Act 2015. As the right reverend Prelate the Bishop of Durham said, it is cruel to do this.
Modern slavery is a devolved matter in relation to the support provided to victims, yet the Bill appears to undermine devolution in overruling the provision of support provided in Northern Ireland and Scotland. It was very interesting to hear the noble Lord, Lord Weir of Ballyholme, quite rightly highlighting the issues facing Northern Ireland, with its border with the European Union and the common travel area. It was even more interesting to hear from the noble Lord, Lord Morrow, about how this Bill potentially conflicts with EU directives that Northern Ireland is still subject to. It will be very interesting to hear the Minister’s answers on the issues raised by the noble Lord, Lord Morrow, in particular.
In asking the Minister to justify these provisions, both in terms of denying support and in terms of devolution, I am very struck by what the noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Morrow, said about the impact that meeting victims of modern slavery had on them. I wonder whether the Minister, who I think previously suggested that he had not met a victim of modern slavery, or anybody involved in the drafting of these provisions, has met a victim of modern slavery—bearing in mind the impact it has had on the noble Baroness and the noble Lord.
As my noble friend Lady Hamwee has said, we do not believe that Clauses 22, 23, 24 and 27 should stand part of this Bill.
Lord Murray of Blidworth (Con)
My Lords, as we have heard, this group of amendments relates to the provision of support to potential victims of modern slavery. We have, of course, recently had an extensive debate about the application of the public order disqualification to those who meet the conditions in Clause 2 of the Bill. I will not go over the same ground again, save to say that it is a necessary consequence of the provisions in Clause 4 that the duty on the Home Secretary to make arrangements for removal of persons who meet Clause 2 conditions should apply regardless of whether the person claims to be a victim of modern slavery.
It follows that, for the provisions of this Bill to work as intended, individuals who arrive illegally in the UK and receive a positive reasonable grounds decision must be disqualified from the protections of the national referral mechanism. Clause 22 gives effect to this principle for England and Wales by disapplying the duties on the Secretary of State, under Section 50A of the Modern Slavery Act 2015, to provide necessary assistance and support to potential victims during the recovery period. Clauses 23 and 24 have the same effect in relation to corresponding legislation in Scotland and Northern Ireland respectively. Clause 27 then makes the necessary consequential changes to the relevant legislation that applies in each part of the United Kingdom.
If an individual arrives in the UK illegally and a first responder suspects that they may be a victim of modern slavery, they will still refer that individual into the NRM and that person will receive a reasonable grounds decision. That process will not change under the Bill. However, as I set out before in relation to Clause 21, Article 13 of ECAT envisages that the obligation on signatory states to provide assistance and support to potential victims may be withheld on grounds of public order. This is precisely what Clauses 22 to 24 give effect to as a result of the public order threat arising from the current scale of illegal entry into the United Kingdom by people undertaking dangerous and unnecessary channel crossings in small boats. That means that they will not benefit from the protections otherwise afforded to potential victims of modern slavery, subject to the exception set out in Clause 21, which we have debated at some length.
It is right that the Government take meaningful steps to ensure that these illegal and dangerous channel crossings are stopped and that any incentives to enter the UK by such means are closed off. That is what these clauses seek to do. Clauses 22 to 24 operate subject to the same exception as Clause 21 in relation to those potential victims who are co-operating with a public authority in connection with an investigation or criminal proceedings in relation to their alleged exploitation, and it is necessary for them to remain in the UK to provide such co-operation.
The effect of Amendments 93, 94, 95 and 96 is no different in practice from proposition by the noble Baroness, Lady Hamwee, to strike out these clauses as a whole. The amendments effectively gut Clauses 22 to 24, such that the existing requirements relating to the provision of support would continue to apply. It will therefore come as no surprise to noble Lords that I cannot commend these amendments to the Committee.
In response to the devolution points raised by the noble Lords, Lord Weir and Lord Morrow, and the noble Baroness, Lady Bryan, I remind the Committee that immigration and nationality are reserved matters in Scotland, Wales and Northern Ireland, and therefore matters for the UK Government. It is also our view that the modern slavery clauses also deal specifically with the reserved matter of immigration, and they are for a reserved purpose. As for the Bill as a whole, they would not therefore engage the legislative consent process.
I assure the right reverend Prelate the Bishop of Durham that anyone who has arrived illegally in the UK on or after 7 March and before commencement would in this period receive support as now.
Baroness Bryan of Partick (Lab)
Will the Minister confirm that support for people who have been trafficked and involved in modern slavery is a devolved issue?
Lord Murray of Blidworth (Con)
No, I am afraid that is not the view of the Government. These provisions are in a measure that relates to a reserved issue.
Lord Murray of Blidworth (Con)
Forgive me, but I am just answering this point. So it is the Government’s view that the provisions in this Bill fall within the reserved matter that I described a moment ago.
Lord Weir of Ballyholme (DUP)
The specific issue that was raised was about support for victims of human trafficking, which clearly is a devolved matter—or alternatively the legislation, for example, that was passed through the Assembly last year would have been ruled out of order and incompetent on that basis. It dealt specifically with the levels of support that victims of human trafficking would receive.
Lord Murray of Blidworth (Con)
I agree with the noble Lord that, in that context, the Assembly had competence to consider those issues. However, in the context of the overall Bill, this measure deals with immigration. Therefore, for the reasons I gave, the measures fall within the competence of the United Kingdom Government.
The current rate of dangerous and unnecessary small boat channel crossings represents a clear and present threat to public order, justifying our invoking the relevant provisions of ECAT. They risk lives and place unprecedented and unsustainable pressure on our public services—housing, health, education, welfare and others. The Government are right to take the necessary measures in the Bill to remove the clear opportunities to misuse our modern slavery protections in order to frustrate the duty to remove in Clause 2. On that basis, I commend these clauses to the Committee and invite the noble Lord, Lord Coaker, to withdraw his amendment.
Baroness Ludford (LD)
Before the Minister sits down and the noble Lord, Lord Coaker, jumps up, could I ask the Minister something? Unless I was being inattentive, in which case I apologise, I am not sure that he answered the point raised by the noble Lords, Lord Weir and Lord Morrow, about the Windsor Framework—which is to be known as the Northern Ireland protocol—the duties in it and the application of EU law. He mentioned the trafficking directive and the victims directive. How is the Bill compatible with those obligations in Northern Ireland? If I have got it wrong, the noble Lord, Lord Morrow, will correct me.
Lord Murray of Blidworth (Con)
My understanding is that the measures are compatible with the Windsor Framework, but I will take that point back to the department and will write to both the noble Lord and the noble Baroness on it.
Lord Coaker (Lab)
My Lords, I thank those who contributed to the debate. I will come to the more general point about assistance and support as they relate to Clause 22, but I will first respond to the noble Lords, Lord Weir and Lord Morrow, and my noble friends Lady Bryan and Lady Kennedy. I am not sure about this, so can the Minister go back and check that it is right? From all my reading about devolution, I think that everyone accepts and understands that immigration is a reserved matter. I find it really difficult to understand why, in Scotland and Northern Ireland, the devolved Administrations’ ability to enhance support is not a devolved matter. I do not understand why, if they choose to do more to support a victim of trafficking, they cannot do so. I respectfully ask the Minister to check that that is the case, because I cannot believe it is.
Lord Coaker (Lab)
That would be helpful, looking at the incredulity on the faces of the noble Lords, Lord Morrow and Lord Weir.
Baroness Kennedy of The Shaws (Lab)
A year ago, I conducted an inquiry into a horrifying set of events that took place in Glasgow during Covid, involving refugees and asylum seekers. Support was given then by the local authority to the asylum seekers in Glasgow. In addition, there was a migrant helpline, which was pretty hopeless, emanating from the Home Office—it was outsourced—but most of the social work on the ground was done by the local authority.
Lord Coaker (Lab)
I thank my noble friend Lady Kennedy for that. Asking the Minister to check this is helpful. It will no doubt be in his notes that it is the case, but, given the experience of devolved matters of noble Lords, it would be helpful for the Committee if that were checked and confirmed one way or the other.
Agricultural Tenancies
(11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Hayman of Ullock (Lab)
My Lords, I begin by welcoming this Statement and the fact that the Government are agreeing to implement many of the recommendations from the Rock review. I also thank the noble Baroness, Lady Rock, and everybody who has been involved in the Tenancy Working Group for their work in producing such an excellent report.
Why does this report matter? Tenant farmers remain an important part of British agriculture. Tenants farm 30% of farmed land in the UK, and this is a traditional means of entry for young farmers who do not happen to inherit a farm.
Tenant farmers are vital if the Government are to meet their ambitious commitments across food security, the environment and climate change, as well as levelling up rural communities. A clear government commitment to the agricultural tenanted sector is important to the future of farming in this country, so it is very good to see that, as the Statement says, three-year agreements are now being offered for tenants to participate in the sustainable farming initiative. Yet, according to the Tenant Farmers Association, a lack of security over the future and not knowing if they will still have their farms in five years’ time is the biggest worry for most tenant farmers, who are under a farm business tenancy. This therefore provides very little incentive for them to invest in the medium to long term in their farms.
In commenting on the Government’s response to the review, the noble Baroness, Lady Rock, said that she was disappointed that they had not recognised its findings regarding the increase in new clauses being inserted into farm business tenancies that reserve the right to enter public and private schemes solely for the landlord. Can the Minister tell us why the Government made that decision?
The Statement also says that the Government must
“remove any remaining barriers to accessing our farming schemes”.
This, of course, includes much more than just the sustainable farming initiative. Why did the Government not accept the proposals from the Rock review to make it easier for tenants to enter the tier 2 and tier 3 versions? This is where a lot of the schemes will sit. I am thinking particularly, for example, of Countryside Stewardship and landscape recovery. Can the Minister also tell the House how the Government intend to deliver the review’s recommendations on securing tenant access to the new environmental land management schemes on tenanted land when there is no landlord consent?
The noble Baroness, Lady Rock, also said that she was
“disheartened that the Government has avoided the recommendation to allow tenant farmers to have a fair basis on which to engage in diversified activities and that the proposal to involve the independent Law Commission has been downgraded”.
Again, can the Minister provide an explanation as to why these decisions were taken?
I move on to the next announcement in the Statement: the establishment of the farm tenancy forum. We very much welcome this, but is the Minister able to further clarify its role? It will be important that it does more than just monitor and ask for further evidence. It will need to fulfil its task of implementing the Government’s response to the Rock review—all the good things that are in that—and should not be just a rolled-over version of its predecessor.
We are pleased to see that the Government are going to progress the development of the new code of practice and very much welcome the leading role to be taken by the Royal Institution of Chartered Surveyors.
Regarding the further consideration of the recommendation of a tenant farming commissioner, the review clearly laid out exactly why this is needed. Can the Minister assure your Lordships’ House that the call for evidence will be carried out with a real sense of urgency?
Finally, we know that there is continued anxiety around the future of farming and a need for more training and business support, so we very much welcome the commitment in the Statement regarding the new entrant support scheme pilots. Can the Minister provide any information as to when we are likely to have more detail about that? It would be interesting to know how long the pilot scheme will last, when they are likely to implemented and so on. Encouraging more people to enter farming is vital if we are to have a thriving agricultural tenanted sector in the future.
I look forward to the Minister’s response, but we warmly welcome the fact that the Government are committed to implementing the bulk of what is in the Rock review.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I am grateful for this opportunity to comment on the tremendous work that the noble Baroness, Lady Rock, and her team have done on the tenant farming sector, which plays such an important part in the agricultural provision of the country.
The Statement, given in the other place on 24 May, draws on the government response to the Rock review, which was published in October last year. The review itself was extensive and covered every area of the way that agriculture is conducted by tenant farmers, from relationships with landlords to tax systems. Tenant farmers are now firmly at the centre of the agriculture industry. I am delighted that Defra has proposed setting up a tenant farmers’ forum; that is excellent news. Tenant farmer voices need to be not only heard but listened to.
I read the Rock review, the government response and the Statement, and thought that the Statement was very thin on the detail of the government response and the review itself. The review splits its recommendations into two parts: those requiring immediate action and those taking place over a longer timeframe.
There are aspects of the government response that were good. First, the Government are ensuring that the various ELMS are easily accessible and open to tenant farmers; that is essential. Recommendation 1 gives details of how this could be achieved, including by ensuring that landlords are not able to block tenant applications. However, in terms of the SFI, it is true that tenant farmers have not rushed to take part. Can the Minister say what the Government are doing to rectify that situation?
Secondly, the Government are ensuring that Defra communicates with the tenant sector and that funding schemes are easily accessible to tenant farmers; that is important. Doing this through the farm tenancy forum is also important. Thirdly, they are continuing to invest in farm infrastructure through the farming investment fund by means of grants to farmers, foresters and growers, which will include tenants. Science and technology are moving at a pace; it is vital that tenant farmers have access to resources to invest in innovation. Is the Minister able to say how much of the £168 million in the FIF has been allocated to the tenant farming sector, and is this likely to be sufficient to make a real difference to the tenant farmer?
Other aspects of the response were not so encouraging. Requiring a longer period for implementation is the proposal in recommendation 6 for the appointment of a tenant farmer commissioner. This role would ensure that government policy is tenant-proofed. The commissioner would be able to examine and strengthen any dispute resolution processes. That was met by Defra with a call for evidence over the summer months. This seems to have been in response to industry lobbying with differing views, possibly from the landlord sector. That was disappointing, so I would welcome the Minister’s view on the appointment of a tenant farmer commissioner.
There were also a large number of recommendations, where the government response was to
“work with the … Farm Tenancy Forum”.
While that is exactly what they and the forum should be doing, it seems to me that the Government were pushing a disproportionate amount down to the forum. It would be better if they made a much more positive response to the individual recommendations in the Rock review in the first place.
The chapter on tax contained a number of recommendations, including recommendation 62:
“Reform Stamp Duty Land Tax to end discrimination against”
farmers. The government response to this and to recommendations 56 to 58 was to explore the potential for relief on tenancies of eight years or more and to work with the forum on solutions. Again, that was not as encouraging as it might have been.
In the other place, the previous Secretary of State raised the issue of the Law of Property Act 1925 and the Agricultural Holdings Act 1948, whereby landowners had a right to rent out their land. However, following lobbying by the banking industry, that was taken away through Section 31 of the Agricultural Tenancies Act 1995, which requires that they now need permission from a bank. The question was asked whether the Government had considered repealing Section 31. The Minister’s response was to look into the matter and get back to the right honourable Member. Given the length of time that has elapsed since the Statement was first debated, can the Minister update the House on whether this is likely to be considered?
Tenants, and farmers in general, are bogged down in measuring and monitoring what they do. Recommendation 68 calls for Defra to
“systematise the measurement, monitoring and collection of data on tenants and their involvement in schemes”.
This is not rocket science and it will make a tremendous difference to tenants and other farmers. The Government’s response was quite long and ended with:
“We will keep this question under review as part of our monitoring, evaluation and learning work, to ensure we have all the necessary evidence to inform ongoing policy review and development”.
So that was a no. The Government are obsessed with monitoring and evaluation; as the saying goes, you do not fatten a pig by continually weighing it. The noble Baroness, Lady Rock, has taken an enormous amount of time on this review and produced some workable recommendations which would enhance the lives and viability of tenant farmers. I am disappointed by the government response.
The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)
I thank both noble Baronesses for their welcome for the review, which I entirely share. I should refer noble Lords to my entry in the register: I am not just a farmer but a member of the Royal Institution of Chartered Surveyors.
I pay a real tribute to my noble friend Lady Rock for what she has done to ensure that tenant voices are heard at this key moment in our agricultural transition. It was entirely right of my right honourable friend George Eustice to commission her. The team she had around her did an enormous amount to help Ministers on policy, but also to give a voice to a very important part of our agricultural sector.
From day one of the agricultural transition, we have worked with tenant farmers as we have codesigned our farming schemes, utilising their input through our tests, trials and pilots to develop schemes so that they are accessible to all. But we are grateful to the review for highlighting some areas which we have taken action to ensure are accessible to tenants. We recognise how critical the tenanted sector is to a successful agricultural transition. When we commissioned the tenancy working group to carry out this comprehensive review, we were absolutely clear from the start that tenants must continue to be a very significant part of the occupation of land and the production of high-quality food in this country.
I will address the various points that the noble Baronesses raised, but not in any order—I hope they will forgive me. On the farming investment fund raised by the noble Baroness, Lady Bakewell, we have made productivity and capital grants, such as those available through the farming investment fund, available to both landlords and tenants.
There are over 70 recommendations in this review and many we have already delivered on, such as the very important point about sustainable farming incentive standards. We have three standards that were launched a year ago: they are the standards on arable and horticultural soils, improved grassland soils and moorland. We have announced six new standards for this year, which include hedgerows, integrated pest management, nutrient management, arable and horticultural land, improved grassland and low-input grassland. We want to make sure that tenants can access those, in many cases without landlords’ consent. That is an absolutely key point, but other measures are also available to them in such areas as countryside stewardship.
Some of the Rock review recommendations have widespread stakeholder support. There is less consensus on others and we want to make sure that we are getting it right, so asking for a call for evidence on whether having a tenant farming commissioner is right seems a good process to undergo before appointing one. However, we are open to the idea; I want to reassure noble Lords on that.
The noble Baroness, Lady Hayman, asked about the Farm Tenancy Forum. The current Tenancy Reform Industry Group is an ad hoc organisation that meets on an irregular basis to resolve particular issues. The Farm Tenancy Forum will meet quarterly; it will be co-chaired by my right honourable friend Mark Spencer, the Farming Minister; and it will have a remit to find solutions to various issues relating to the tenanted sector and feed back real-world experience and insight on progress. We are inviting industry organisations that represent tenant farmers, agricultural landlords and professional advisers who work in the sector to be members of this group. The forum will build on the valuable work the Tenancy Reform Industry Group delivered over many years. To explore the issue of a tenant farming commissioner in more detail, we will make an announcement this summer at the completion of the call for evidence.
We recognise that, in many cases, tenants and land agents—and I speak as somebody who qualified as a land agent—work collaboratively. The vast majority of the relationships between landlords and tenants is good. There are some bad cases, and the report highlighted the actions of some advisers that need to be addressed. I am pleased that the Royal Institution of Chartered Surveyors is looking at a new code of practice. That will build on work that has already been done by the CLA and the Central Association of Agricultural Valuers to make sure we are getting that right.
The government response recognises that the issue of restrictions in farm business tenancy agreements needs to be examined further to see whether those are a widespread barrier to tenants accessing new schemes. We have to remember that if we make dramatic changes to policy, we could stop the access to farming by this key group of people, because the incentives to landlords to let land will not be there. That has happened in other countries, and we want to make sure that the vibrant tenant farming sector exists because landlords are incentivised to let land and, once they have let it, farmers can get on and farm it, secure in the knowledge that they are going to be able to access the schemes and know they are not going to have what is known as unreasonable land resumption, which is basically the ending of tenancies.
I can speak from first-hand experience about the importance of the term of years of tenure. The report makes some really interesting comments about trying to incentivise landlords to give longer tenancies, and some of the tax reforms announced by the Chancellor—the Government are seeking evidence on them before making a change, and it comes under the Treasury and not Defra—are the sorts of things we will be promoting. What is clear is that as you get to the end of a farm business tenancy, the tenant has less and less incentive to invest—in buildings, in the natural capital that he or she is seeking to exploit—and nobody wins. To give them some sort of surety was one of the best points that was made in the review.
The noble Baroness, Lady Hayman, asked about new entrants, something vital to me and to us in Defra. On the one hand, we have given the exit scheme to allow farmers to exit their holdings with dignity and support from the Government. At the same time, we are putting in £1 million for access to special benefits by tenants as part of the development of the new entrant support schemes. We will involve tenancy industry bodies such as the Tenant Farmers Association to be part of the stakeholder advisory group. We will share data on the number of tenants that have signed up to the pilots, use the feedback we get from tenants to embed tenant farmer thinking back into policy design, and look to the extent to which new entrant support scheme pilots support people to gain new tenancies.
The biggest barrier to somebody succeeding in farming and getting through the door is a shortage of capital or skills. If you assist a new entrant in setting out a business case for a tenancy that comes available, how to talk to a bank and how to do a cashflow, their skills and enthusiasm will take on the rest. We have seen this happen, and I applaud so many good landlords for doing it. That is the experience of the Duchy of Cornwall, the Crown Estate and many others. Clinton Devon Estates is a great example of a really enlightened policy of trying to encourage new people into farming and bringing in new ideas, which is absolutely vital.
I am conscious that this is a long Answer; I was asked a lot of questions. On the tax recommendations, as I said, at the Spring Budget we launched a consultation to explore the extension of inheritance tax relief to include land in environmental land management schemes and ecosystem service markets. The consultation also explores the option to limit inheritance tax relief to let land out for a minimum of eight years. Since publication of the review, HMRC has updated its inheritance tax manual to help clarify the tax treatment of agri-environment schemes.
On the point about technology and the collection of data, this is not particular to tenant farmers: it is absolutely vital across the farming sector. Technology is our friend here. Someone with the scars on their back of IACS, going round with a measuring wheel and arguing on the phone with Defra—or MAFF, as it was then—about whether you had one-metre or two-metre margins, can now do it from satellite data or with their mobile phone. The collection of data has to be easy and sensible, and we need to incentivise people to do it. That will assist in so many areas of the governance of farming, not least the availability of land for tenant farmers. We want to make sure that that is happening.
The Earl of Caithness (Con)
My Lords, I welcome the Statement. I, too, thank my noble friend Lady Rock for her report. I do not agree with all of it—I expect that none of us does—but I agree with its general thrust.
I was interested in what my noble friend the Minister said about the farm tenancy forum. I am slightly worried that it will become a talking shop. How will it work with the proposal for a tenant farming commissioner? There will be a clash, and one will get a bit sidelined.
Woodland is an important but hugely tricky area. Woodland is generally excluded from an agricultural tenancy, but hedgerows are not, and the hedgerows are as good at absorbing carbon as the woodland. I hope the Government will be able to devise a way forward whereby tenancy agreements can be altered to allow tenants to have bushier, wider hedgerows and plant trees in them without breaking their tenancy agreement.
Can my noble friend explain a bit more about what the RICS exercise is all about? I declare an interest as a former agent. There are indeed some bad agents, but there are bad landlords and bad tenants, and some pretty awful politicians. It happens in every trade, and I was slightly disturbed by my noble friend Lady Rock’s generalisation about how bad agents are. Agents only do what the landlord or tenant tells them to do. This will be particularly concerning in future as more and more firms that have absolutely no interest in agriculture buy up land in order to get carbon credentials into their portfolio and instruct their agent to do exactly what they want. Some accountant in Croydon will be crunching the figures and, unless the agent performs, he will be sacked. Can my noble friend tell me a little more about that?
Underlying the whole of this landlord-tenant relationship is the worry about what a future Government would do. The Labour Party, and indeed the Government, with the levelling-up Bill, are committed to buying land from landowners at below market value. If that continues, landlords will be very wary of letting any land to tenants in future.
Lord Benyon (Con)
I am grateful to my noble friend. One of the greatest criticisms of the Tenancy Reform Industry Group—I pay tribute to the many hours many people sat on that organisation—was that it was a talking shop. People did not feel they were being listened to, and it was a way of getting off their chest concerns they knew existed. We want to make sure that the new forum is not that; that it is executive and has a snap to it. As I have said, it will meet every quarter and the Farming Minister will be one of the co-chairs. Its remit and the determination to keep it close to Ministers shows that it will be more than that.
My noble friend makes valid points about trees and hedgerows. We have published guidance on how tenants can approach tree planting and woodland schemes such as the England woodland creation offer, and we have made sure that both the tenant and landlord will need to agree to any EWCO proposal on tenanted land. I do not think that is wrong—it is absolutely right that if a major change in land use is being promoted, the landlord’s interests matter. If they do not, it will be another incentive for landlords not to let land, or indeed to bring to an end a letting arrangement when a farm becomes available and take it in hand. We want to make sure we are still providing the incentives.
My noble friend is entirely right about hedgerows. That is why we have published our new hedgerow standard as part of the new six standards for the sustainable farming initiative. But he is absolutely right that a hedge no higher than this table does not really achieve very much in terms of carbon and biodiversity. If it is much wider, much higher and preferably has an unploughed, unfarmed cultivated headland, it will be immensely more important.
My noble friend is absolutely right, of course, that a lot of agents are excellent people—I think I was when I was one—but we should not create legislation around trying to put everybody in the same boat as the bad ones. Agents are undoubtedly advising their clients as to what is best for them to secure their interests for the future and the future generations of their family. That is why we want to see the kind of changes we are making to inheritance tax, which give the incentive to landowners, on the advice of their agents, to do the right thing and encourage that. I have received inspiration from my colleague, the Minister. I might have misled the House. He is not the co-chair but, importantly, he will attend every meeting of the tenants’ forum.
Lord Cromwell (CB)
My Lords, I did not intend to speak this evening, but apart from sharing the noble Lord’s scars of IACS from the past—he has my profound sympathy—I declare my interest as a shareholder in the family farming company. I will make two points. One is that well-intentioned changes can produce unintended consequences. I am not going to get into the details of hedgerow widths or heights tonight, but simply say that history shows us you cannot force landlords and tenants to have a happy, long-term relationship. It is based on trust, performance and mortality—people die, people get ill and things move on. You cannot oblige people, any more than you could in any other relationship, to stay together if it is not working.
Secondly, on introducing taxation in this form, if you make it obligatory to have an eight-year tenancy or you do not get tax relief, the answer will not be eight-year tenancies; it will be no tenancies, because no landlord in their right mind will be tied down in that way. They will simply take the land in hand and contract-farm it. We have had tenants farming with us for whom we have run back-to-back short-term tenancies for years and years, because we have a relationship of co-operation and trust. However, if the law obliges us to enter a multiyear relationship in which they can change the land use entirely, those tenancies will simply come to an end. The tax system should not interfere in what are fundamentally human relationships between people trying to work together in their mutual interest.
Lord Benyon (Con)
The noble Lord speaks an awful lot of sense. To an extent, it is impossible for government to be perfect here because, as he says, we are dealing with human relationships. Government should create the right incentives. We are talking about a business relationship. There are so many different types of tenure in this country—owner-occupier, tenancies under the Agricultural Holdings Act 1986, farm business tenancies under the 1995 Act, graziers, contract farmers, share farmers and multiple graziers on commons. The complications of trying to create a farming support system that can be accessed by them, particularly in areas such as Countryside Stewardship, are really difficult, but it is vital that they are there.
The noble Lord is absolutely right that, if we get this wrong and government tries to impose things that the market does not want, we will end up getting the worst of all possible worlds—people we want to see on the land not on the land. We want to make sure that we keep this vibrant, diverse form of occupation and use of land, which requires landlords and tenants to work together for their mutual benefit and for the societal benefit of us all, through the use of our vital natural capital, which will deliver many more wider societal benefits.
The Earl of Leicester (Con)
My Lords, I declare my interests as a landowner with a number of tenants, as a farmer and as an agricultural contractor. I too welcome the excellent Rock review, but I quite understand the Government not accepting all 70 recommendations. Some of the proposals in the review have the potential to harm confidence in the tenancy industry. While they may enhance the interests of existing tenants, they would reduce the land available to new tenants. We must remember that tenancy is not the only entry into agriculture; there are share farming arrangements and a lot of young people start off as contractors and build up as they increase their capital. Can my noble friend elaborate on inheritance tax and on how longer tenancies, with regard to planting of trees et cetera, might affect inheritance tax for landowners?
Lord Benyon (Con)
I thank my noble friend; his experience is really important in this debate.
I do not know that any report that has so many recommendations has been accepted in full by any Government, but we think the vast majority of these recommendations are really good. Some of them, such as the inheritance tax point, is one where we think we need to do more work. Government does not exist in an ivory tower; that is why we commissioned this call for evidence, which closed on Friday. We want to explore more ways to encourage more landlords and tenants to consider a longer-term tenancy agreement while retaining the flexibility that farm business tenancies currently provide.
As we transition to new farming schemes, there will be more certainty and encouragement for both landlords and tenants to enter into longer-term tenancy agreements and we are designing our new schemes to be accessible to as many farmers and land managers as possible. As I said earlier, at the Spring Budget the Chancellor launched this consultation to explore the extension of inheritance tax relief to include land in environmental land management schemes and this consultation will also explore the benefits and impacts of the Rock review recommendation to limit inheritance tax relief to land let out for a minimum of eight years and analyse further what impacts that would have on the length of a tenancy agreement. A number of noble Lords made the very good point that if one goes about this in the wrong way, one achieves a perverse outcome, which is that fewer landlords are incentivised to let land and we suffer because our tenure becomes less diverse and less accessible to new entrants.
Illegal Migration Bill
Monday 12th June 2023
(11 months ago)
Lords ChamberRead Full debate Illegal Migration Act 2023 View all Illegal Migration Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 133-V Fifth marshalled list for Committee - (12 Jun 2023)
Baroness Ludford
Member’s explanatory statement
This amendment ensures that due regard is given to other international agreements when indefinite leave to remain is considered by the Secretary of State under Clause 8AA(5).
Baroness Ludford (LD)
My Lords, I am going to do two things that the Government Chief Whip does not like. First, I am going to take a little time over my remarks in moving this amendment. Secondly, I am going to read my speech, because these are very complicated matters in Clauses 29 to 36 and I want to be sure that I am covering what are quite dense political points. What we are doing at the moment is not just a question of opining on an issue of the day; we are actually analysing crucial legal provisions in a piece of legislation so I do not apologise.
I shall speak once in a single contribution covering my clause stand part on every clause in this section of the Bill and my Amendments 98ZA and 98EA to Clauses 29 and 35 respectively. The clauses are extremely important and, in my view, regrettable provisions. They are pernicious in depriving refugees who ever met the four conditions in Clause 2 of any chance, long term, of integrating into and contributing to our society by denying them any prospect of settlement or citizenship, with few exceptions. British citizenship enables a person to live and work in the UK permanently, vote, hold public office and participate fully in British life in a way that no other type of status allows.
The amendments in the names of the noble Lord, Lord Moylan, and the noble Baroness, Lady Lister, focus specifically on those entitled to various kinds of British citizenship who need to register to secure recognition of that, and I pay tribute to their work on this, which I know has a particular focus on children.
I am taking a global view of the operation of this section of the Bill, whether on entry, leave to remain or any kind of citizenship, whether by registration or naturalisation, because the issues are interrelated. The clauses impose lifelong prohibitions on lawful re-entry or gaining leave to remain in the UK and on grants of citizenship, as opposed to the maximum 10-year re-entry ban under the current Immigration Rules. They are an extension of the whole deterrence agenda and are in conflict with several international obligations. The clauses breach Article 8 of the ECHR and the right to private and family life because they are axiomatically disproportionate. A blanket ban allows for no individual consideration whatever, such as in no possible circumstances could you ever be granted status. The UK has, for instance, certain positive obligations under Article 8 to allow family reunification, such that failure to allow a relevant individual to reunite with their family members by entering or settling in the UK could breach those obligations. The breach of Article 8 ECHR could even escalate to a breach of Article 3, which bans torture or inhuman or degrading treatment. It is also unclear, as a practical matter, where the Home Secretary has determined that a human rights claim or asylum claim is inadmissible by virtue of Clause 4, how an individual could apply to the Secretary of State for an exception to be made in their case. Perhaps the Minister could put me right on that point.
The Bill is in a multitude of ways incompatible with the UN Convention on the Rights of the Child, which protects the right of children to a nationality, prohibits discrimination and requires that the child’s best interests are counted as a primary consideration in actions concerning them. The Bill is also incompatible with current UK law, such as the Children Act 1989.
The JCHR, which I thank for its excellent report published yesterday—in which, as I am no longer on the committee, I had no part—highlights the legal problems with the Home Secretary’s discretionary exception-making powers. Giving her discretion to act in accordance with the UK’s international obligations also means giving her power to act in breach of them, and a refusal to exercise discretion may not be capable of an effective challenge. The UNHCR says:
“In order to bring this section of the Bill into line with the UK’s obligations under international law, the exceptions to the ineligibility for all forms of leave and for citizenship should be based on compliance … with European Convention on Human Rights and other international agreements and those decisions should not be left to the discretion of the Secretary of State”.
Where a breach of the UK’s international obligations would otherwise occur, the Home Secretary should surely be under a duty to make an exception, rather than have a discretion to do so. If a person entered the UK by irregular means but could not, for whatever reason, be removed, Clause 29 in conjunction with Clause 4 would prevent them from regularising their stay in the UK, leaving them in perpetual immigration limbo and would of course be the prelude to their having no chance of access to citizenship. Depending on the length of the delay and the private and family ties they have generated during that delay, this could violate the UK’s positive obligations under Article 8 of the ECHR, the refugee convention, the convention against statelessness and the UN Convention on the Rights of the Child, to name but the most obvious ones.
UNHCR comments that, as at present the UK is effectively unable to remove asylum seekers to third countries:
“It is entirely foreseeable—and in Clause 29-36, expressly foreseen—that many refugees and stateless people who will be ineligible for any form of leave to remain will nonetheless remain in the UK for extended periods of time, if not indefinitely, trapped ‘on the margins’ of society”.
Throughout proceedings on the Bill, beginning with Second Reading, many of us have raised this worry about people being left in limbo. Because we lack the impact assessment from the Government, we all have to go on the one from the refugee commissioner, which estimates that there could be 200,000 people within three years, marginalised, in limbo, destitute—really healthy for our society.
Even if the Home Secretary exercised her discretion to grant some form of leave eventually, anyone who had ever been subject to the removal duty would be permanently ineligible from becoming a British citizen through several of the main routes available under the British Nationality Act 1981. However, Article 34 of the refugee convention requires contracting states as far as possible to
“facilitate the assimilation and naturalization of refugees”.
The impact on children of a lifelong prohibition on re-entry or gaining leave to remain could be particularly severe and is difficult to reconcile with the UK’s international and domestic obligations. Consideration of the best interests of an individual child is absent from Clause 29, but how can a blanket ban be in the best interests of a child for the purposes of either Article 3 of the UN Convention on the Rights of the Child or, domestically, the Children Act 1989 or Section 55 of the Borders, Citizenship and Immigration Act 2009?
The Government have acknowledged that children affected by this Bill
“will rarely qualify for citizenship”
if they or a relevant family member are subject to Clause 2. The JCHR considers that this seems to contravene Article 2 of the UN Convention on the Rights of the Child, which prohibits the discrimination or punishment of a child on the basis of the status of or activities of their parents or guardians. Where the child, as will of course be the case, will have had no control over their parents or the decisions which led to them arriving in the UK irregularly, the automatic imposition of a lifelong ban which they then have to convince the Home Secretary to reverse seems to fall within the definition of a punishment. Can the Minister tell me how Clause 29 is compliant with the Supreme Court case of Zoumbas and subsequent case law on the issues concerning children’s best interests in an immigration context? How can routine application to children of a blanket ban on entry and leave to remain without consideration of their particular circumstances possibly be lawful?
I am on my last page. The Home Secretary’s discretion under Clause 29 when deciding whether to lift a ban on limited leave to remain has to be exercised so as to avoid a breach of the ECHR or any other international agreement to which the UK is a party but, in a similar situation with regard to a grant of indefinite leave, only conformity with the ECHR is said to be relevant. Perhaps the Minister can explain the contrast between those two situations in Clause 29, because I have not managed to pin down the rationale. My Amendment 98ZA in any case adds in other international agreements so as to align the two legs of Clause 29 on leave to remain.
Many children, either because they arrived unaccompanied as a small child or because removal has not been possible in practice, may be born or spend their entire childhood here and have a solely British identity. The Bill would mean previously acceptable routes to citizenship, such as the discretionary route or the settled route, being either blocked or fundamentally altered. The 10-year route would be possible in theory but, for children whose parents were irregular entrants, those parents could be prohibited from obtaining leave to remain, citizenship and employment, thus creating instability and poverty in the child’s life.
The Bill would also put stateless children at significant risk. If a relevant family member was an irregular entrant subject to Clause 2, they and the stateless child would be subject to mandatory removal, jeopardising the child’s years of residency and potentially condemning the child to a lifetime without citizenship. Clause 35 as originally introduced would in fact have allowed the Home Secretary to make an exception and grant nationality if there were compelling circumstances or it was necessary to comply with the UK’s obligations under not just the ECHR but any other international agreement to which the UK is a party. However, unaccountably, that latter part has been removed, risking the UK being in breach of its legal obligations under those other international agreements.
Even if ECHR grounds are not established, the UK’s legal obligations under the UN Convention on the Rights of the Child may be breached under the prohibition of discrimination or punishment of a child on the basis of the activities of their parents; I have referred to this. This backwards redrafting appears to have eliminated an avenue for stateless people, refugees and others to obtain British nationality in reliance on the refugee convention, the statelessness conventions and the UN Convention on the Rights of the Child. Can the Minister explain, therefore, why the Government have narrowed the available exceptions between the original draft of the Bill, as considered in the other place, and the Bill as it came to this House? I hope that, unless a convincing answer can be given, this House will see fit at a later stage to seek to restore the grounds for making exceptions under Clause 35 to the version introduced in the other place; namely, on the grounds of both the ECHR and any other international agreement.
I hope that I have explained sufficiently why these Benches have tabled amendments and clause stand part notices, which would remove all the clauses in this part of the Bill and at least bring the Home Secretary’s exercise of discretion in line with international law. I beg to move.
Lord Moylan (Con)
My Lords, I rise to speak to a number of amendments in this group in my name; namely, Amendments 98A to 98H. I also oppose Clauses 33 and 34 standing part; those notices stand in the name of the noble Baroness, Lady Ludford, and I have added my name to them. I am grateful for the support of the noble Baroness, Lady Lister of Burtersett, for each of my amendments and the clause stand part notices. This is a coherent suite of amendments: they do one thing but are necessary to do that thing throughout a whole section of the Bill that, in essence, covers Clauses 30 to 36, which stand together as a form of deprivation. I am grateful to Amnesty for its assistance in drafting these amendments; I should also say right at the outset that I am grateful to the Minister, my noble friend Lord Murray, for the time he gave to a meeting in advance for us to discuss them.
The essence of what is happening is that the Bill has a two-step deterrence mechanism. It is frankly and openly deterrent, designed to deter people from setting off on a certain course. The first step in that deterrence, and to my mind a very powerful one, is the prospect of rapid removal from the United Kingdom to another country. Coming on top of the money that people have paid, as they have in many cases, to cross the channel or for whatever their mode of arrival, I would have thought that the prospect of immediate removal is a very significant deterrent indeed.
Baroness Brinton (LD)
My Lords, I have tabled Amendment 98I on the status of Hong Kongers with British national (overseas) status. I am grateful to the noble Lord, Lord Alton, who cannot be in his place this evening, the right reverend Prelate the Bishop of St Albans —I think the right reverend Prelate the Bishop of Durham may be deputising for him—and the noble Baroness, Lady Kennedy, for signing this amendment. I particularly thank the Hong Kongers who have talked to us, Amnesty International and the Project for the Registration of Children as British Citizens for their assistance. In the spirit of co-operation, I wrote to the Minister last week setting out the problem that many BNO passport holders face to give him advanced notice.
The noble Lord, Lord Moylan, talked about the amendments that he and the noble Baroness, Lady Lister, have tabled as focusing right down. I am going even further down to one highly specific group where a problem has emerged which seems to breach the British Nationality Act. I hope to be proved wrong and that the Minister can give us some assurances, but the experience of these BNO nationals who have had children born in the UK recently, most of whom are under five years old, is that they are being told by government officials and staff that their children must apply to Chinese diplomatic missions for Chinese travel documents as they are not entitled to any other form of travel document provided in the UK because their parents are not yet full British citizens, even though they are BNO nationals who are waiting to complete the necessary time before applying for settled status and thereafter, as is their right under the law, becoming full UK citizens. Even if that were not the case—if for any reason their parents did not go for that—these children, because they are born here, would be entitled to apply for UK citizenship after being here for 10 years. One official told a Hong Konger parent that their child would have to take the UK citizenship test.
That is clearly mad. Whatever Border Force and Home Office immigration officials are saying, it is utterly confusing. This is a small community who relied on the United Kingdom, which ran their country for many years and allowed the status of BNO to signify that we accepted that status, with everything else that follows from it, including the right to settled status and, in the slightly longer term, the right to UK citizenship.
To be clear, Section 1(3) of the British Nationality Act provides the child with the right to be registered as a British citizen if either parent becomes settled or a British citizen. To be generous, perhaps this is confusion among officials about the gap before the parents are recognised as being settled. However, that application must be made before the child turns 18. Section 1(4) provides the child with the right to be registered as a British citizen if the child remains resident in the UK until the age of 10. Some absences during those first 10 years are permitted. I am saying that because the officials are also telling these parents that if their children leave the UK, they will not be entitled to anything, which is contrary to the British Nationality Act.
Registration under either of these is by right. It is not for the Home Secretary’s discretion. If the requirement is to exercise that the rights are met, the Home Secretary is required to register the child as a British citizen. Can the Minister confirm the earliest point at which a child born in the UK to a BNO national en route to settlement can expect to be able to secure their own connection to the UK, and by what means? Surely the answer is in Section 1(3) of the British Nationality Act 1981.
There is another related matter. There are dependents of those with BNO passports who arrived with HKSAR passports before the current BNO scheme was fully devised. For some, their passports are likely to expire before they achieve their five-year route to settlement. At the moment, they are getting the same response from immigration officials as parents with newborn children regarding their status—that they should approach the Chinese authorities for travel documents. It seems that for dependents with HKSAR passports there is another gap in the system. Quite often these are vulnerable people, sometimes elderly dependents or parents who have come with their children. They are not expecting to return to Hong Kong now.
There is another important point. Many of the Hong Kongers who have arrived here under this status are here because they are perceived as dissidents in Hong Kong under the new regime. Yesterday, in Southampton, two Hong Kongers were attacked by three pro-Chinese Communist Party men, allegedly Chinese students at the University of Southampton, where this happened.
We know, because of the behaviour of the Chinese consulate in Manchester some months ago, that these people are at real risk of attack. For any UK official to tell them to go and get documents from the Chinese is the most extraordinary thing I have ever heard. So I am looking forward to hearing from the Minister and hope that officials need to be briefed. If that is not the case, perhaps he could set out exactly why not. But most importantly, I wonder whether the Minister will meet with me, other signatories to my amendment and some BNO passport holders to further discuss this issue, so that the Home Office understands what is going on.
Baroness Lister of Burtersett (Lab)
My Lords, I rise to speak in support of the amendments in the name of the noble Lord, Lord Moylan, and also in the clause stand part debates, to which I was pleased to add my name. He has made the case so clearly and powerfully that I need say only a few words, but I do want to emphasise the significance of these amendments, from the perspective of both citizenship—the practical and symbolic importance of which we debated last year during the passage of the Nationality and Borders Bill—and of children, who are, as we have heard, the main victims of these clauses that deny citizenship rights in perpetuity.
As the noble and learned Baroness, Lady Hale of Richmond, said in the Supreme Court, the “intrinsic importance of citizenship” should never be played down. I thus agree with the Project for the Registration of Children as British Citizens, of which I am a patron, and Amnesty that the provisions are “profoundly misconceived and harmful”. A theme running through our proceedings has been the Bill’s failure to give primary consideration to the best interests of children, as required by the UN convention and Section 55 of the Borders, Citizenship and Immigration Act 2009. The Bill’s citizenship provisions, which really have no place in a Bill focused on irregular migration, target children in a way that is both discriminatory and punitive. Not surprisingly, this is of profound concern to the Refugee and Migrant Children’s Consortium, which advises that this is a
“fundamentally discriminatory approach to citizenship acquisition”
and potentially, as we have already heard, in breach of Articles 8 and 14 of the ECHR. Babies and children will be subject to a “harsh and life-determining penalty” for an immigration breach when they were minors.
Of course, it is deemed to be immaterial that the breach was due to their parents’ rather than their own actions. The Northern Ireland Human Rights Commission warns that the provisions risk discriminating against a child for the actions of a parent, contrary to Article 2 of the UNCRC—a warning echoed in the JCHR report. I also congratulate the JCHR on getting this out so quickly, especially as the Home Secretary apparently did not answer until the last second. In fact, we had already started in Committee before the committee received her reply to its questions, sent some time ago, I believe.
The UNHCR makes a similar point in arguing that punishing a child for the actions of a parent in this way runs counter to Article 34 of the refugee convention, Article 32 of the 1954 convention, and Articles 3 and 7 of the UN Convention on the Rights of the Child. It is an example of how the Bill puts at risk the safety and welfare of children.
I will just give an example—a hypothetical example of how it might work—from the Project and Amnesty. Thomas is brought to the UK as a child. He is so neglected or abused by his parents that the local authority is compelled to apply for, and is granted, a full care order. He is now growing up in the care of the UK state, and his future properly now lies here, meaning that he may be registered as a British citizen under Section 3(1). However, if his entry to the UK was without permission, he will be permanently excluded from his citizenship rights by Clause 31(2). You can hardly blame the child for what has happened.
Both the UNHCR and the JCHR argue that Clause 35 —which, as we heard, gives the Secretary of State the power not to treat a person as ineligible for British citizenship if this is necessary to comply with the ECHR—should be not discretionary but based on compliance or otherwise with the ECHR. The PRCBC and Amnesty argue that the link here is inappropriate —they may well be right—but, if it is going to be made, it should revert to the original wording, as proposed by the noble Baroness, Lady Ludford, in Amendment 98EA. The JCHR expresses puzzlement as to why the Government chose to narrow the available exceptions originally listed, thereby risking contravening international law obligations other than those arising from the ECHR. So, as the noble Baroness, Lady Ludford, asked, can the Minister now explain the justification for doing so?
In conclusion, once again this Government are showing disregard for the importance of citizenship and for the best interests of children. As they have made one welcome concession in this area, I hope that they will accept the strength of the case for removing entitlement to citizenship entirely from the Bill, or, at the very least—and it is the very least—reverting to the original wording of Clause 35.
The Lord Bishop of Durham
My Lords, I thank the noble Baroness, Lady Brinton, for tabling Amendment 98I, and I thank Amnesty International and the Project for the Registration of Children as British Citizens for their steadfast support for those who wish to register as British citizens. My friend the right reverend Prelate the Bishop of St Albans, who added his name, was here earlier in the day but was unable to stay through to the evening.
This amendment aims to tackle a matter of great significance that affects the lives of many individuals residing in the UK under British national overseas visas. They include many people from Hong Kong who are rightly entitled to British citizenship but face serious uncertainty about their legal status. Many Hong Kongers have reported appalling responses from immigration officials regarding their children born here, being told that they cannot have any travel documentation and even querying whether they are allowed to become British citizens in the future.
We all know the turmoil and uncertainty that has plagued the people of Hong Kong in recent years—many have been subjected to unimaginable hardships, fearing for their safety and the future of their families—so it is concerning that so many face anxiety about the citizenship status of their children. The people of Hong Kong have shown immense courage and resilience against Beijing’s totalitarian regime, and many of those who have come to the UK face profound challenges, including concern about the safety and security of their families living abroad. The nature of the treatment of protesters and dissidents by the Chinese Communist Party means that many of them are now permanently settling in the UK. This amendment is, simply, testament to our support for the people of Hong Kong, and it ensures that their status is not subject to further confusion.
All the way through Committee, it has appeared that the Minister and his team have set their face against accepting any amendments whatever. Here, I suggest, are two—the well and clearly argued one from the noble Lord, Lord Moylan, and this one from the noble Baroness, Lady Brinton—on which they could really give something tonight.
Baroness Kennedy of The Shaws (Lab)
My Lords, as noble Lords will see, my name is attached to the amendment from the noble Baroness, Lady Brinton, and I support it. I am a patron of both Hong Kong Watch and another human rights organisation, The 29 Principles, relating to what is happening in Hong Kong and China. I, too, have been lobbied by many young people and Hong Kong families here, who have fled because of the threats to their safety back in Hong Kong. They face great difficulties and uncertainties around the status of their children. I will not rehearse all of the arguments that noble Lords have heard.
Having heard the noble Lord, Lord Moylan, make an eloquent argument about the whole business of citizenship, and listening to my noble friend Lady Lister, I support this clause stand part proposition. Our special relationship with Hong Kong, and our special duties and responsibilities concerning those people, should be at the forefront of this Government’s mind.
Baroness Janke (LD)
My Lords, I will speak to Amendment 95EA in the name of my noble friend Lady Ludford. The amendment seeks to ensure that all UK obligations under EU law are considered when persons are considered for ineligibility in terms of the rights to entry or citizenship.
As my noble friend said, the consideration of rights under the ECHR raises a number of concerns, such as in relation to Articles 2, 3 and 8. This includes, for example, the right to family reunion, the right for individual circumstances to be considered, and even the rights of safety and not to be tortured. The need to consider the best interests of children is a priority under the ECHR as well as the United Nations Convention on the Rights of the Child. Indeed, the Government have acknowledged that children affected by the Bill will rarely qualify for citizenship, so it is difficult to see how provisions in the Bill are in the best interests of children, as required by the UN Convention on the Rights of the Child.
The right to citizenship is the means by which an individual is able to construct a life, settle, earn a living and feel at home in their circumstances. However, individuals fulfilling Clause 2 conditions will be denied those things. They will most likely be kept in a form of limbo, waiting to be moved elsewhere. Ineligibility for citizenship is particularly important for children, who, in effect, will be denied a future by this Bill through no fault of their own.
The Bill does not comply with many of the UK’s international obligations and penalises the most vulnerable and threatened people. The safeguards of ministerial discretion to protect people from breaches of international law are inadequate, as the report of the JCHR makes clear in its recommendations. I would be interested to hear the Minister’s response to those recommendations.
We have heard from noble Lords some of the punitive measures in the Bill, so how could any of us support what the Government propose in terms of treatment of children? How can it be right to punish children for the activities of their parents? That is unjust and insupportable. To flout international law is deplorable, as it condemns many who have already suffered to more injustice. The Joint Committee has exposed the inadequacy of the Bill, and I hope that the Minister will consider its recommendations.
As others have said, the systematic wrecking of long-supported safeguards for the protection of refugees and asylum seekers is totally unacceptable. The potential for the contravention of international obligations has been clearly established by the JCHR, and is the basis for Amendment 98EA and many other amendments in this part of the Bill, which deserve our support. I look forward to hearing the Minister’s response.
Lord Paddick (LD)
My Lords, my noble friend Lady Ludford has fully explained our reasons why Clauses 29 to 36 should not stand part of the Bill. The lifelong prohibition on status is disproportionate; extending the prohibition to children, who may not have had any choice in their irregular arrival in the UK, is both unfair and unlawful.
As my noble friends Lady Ludford and Lady Janke have said, these provisions will produce a permanent underclass who are unable to work and reliant on the state. We believe that these provisions are incompatible with the European Convention on Human Rights, the UN Convention on the Rights of the Child and the Children Act 1989.
We also support the amendments from the noble Lord, Lord Moylan, and my noble friend Lady Brinton, on the narrow issues affecting citizenship by registration and British national overseas citizens, particularly the children of those settling here from Hong Kong and their inability to acquire travel documents.
We believe that Clauses 29 to 36 should not stand part of the Bill, and we also support my noble friend Lady Ludford’s Amendment 98EA, to ensure that the Home Secretary has to comply with all international agreements and not just the European Convention on Human Rights.
Lord Ponsonby of Shulbrede (Lab)
My Lords, as we have just heard, Clauses 29 to 36 place a permanent bar on those who fall within the scheme outlined in Clause 2 from lawfully travelling to the UK or securing settlement or British citizenship through naturalisation or registration; this is subject only to exceptions to comply with international agreements or where there are compelling circumstances. If the Bill fails to succeed in its aim of removing people, there will likely be a whole class of people stuck in the UK for extended periods without access to a system through which they can obtain lawful status. Therefore, they will be unable to work or rent a home. The noble Baroness, Lady Ludford, expanded on this point eloquently. To sum up the noble Baroness’s speech: she wants compliance with international law. We support her Amendment 98EA.
The noble Lord, Lord Moylan, gave a clear exposition of the Government’s intentions with this Bill, and on the different statuses on the second step, as he put it—the ban on acquiring citizenship by naturalisation but also by registration. As he said eloquently, registration is not a concession or a reward for good behaviour but an entitlement. His amendment seeks to address that point, with particular examples given in his speech.
The noble Baroness, Lady Brinton, also spoke about the specific cases of Hong Kongers and BNOs, and how this Bill could cut across—or seems to cut across—their potential rights. My noble friend Lady Lister, who added her name to the amendment in the name of the noble Lord, Lord Moylan, attacked the problem from the perspective of concern for children who could be subject to this ban because of the actions of their parents. As she rightly argued, this is not fair on those children; she wants to revert to the original wording of Clause 35.
We support the amendments in this group. I look forward to the Minister’s response.
The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)
My Lords, I thank all noble Lords who have spoken in this short debate. It has been particularly illuminating; I have noted the quality of the speeches and hope that I can answer the questions that have been put in relation to these clauses.
Clauses 29 to 36 prevent a person who has entered the United Kingdom unlawfully, and meets the conditions in Clause 2, being able to lawfully re-enter the UK, secure settlement or become a British national through naturalisation or most registration routes. A person who arrives in the UK illegally should not be able to make the UK their home and eventually settle here. Settlement in the UK confers significant benefits, such as the freedom to study, work and access healthcare and public funds; of course, it is also a pathway to British citizenship which, in turn, confers further benefits.
Allowing someone who arrives in the UK illegally to settle clearly creates an incentive for people to make those dangerous journeys. It is a vital part of the deterrent effect that those categories should be included. This is because people taking advantage in that way is unfair. It is unfair on those who play by the rules and come here legally, it is unfair on those who are genuinely in need, as it constrains our capacity to help, and it is unfair on the British public.
Clause 29 precludes people who meet the conditions in Clause 2 from ever settling here and, once removed, being able to re-enter. This is achieved by preventing them from being granted any form of permission through the immigration system. We do, however, recognise there will be occasions when we will need to waive the bans and grant permission; for example, as the noble Baroness, Lady Lister, noted, where not granting permission would contravene our obligations under the European Convention on Human Rights. Clause 29 balances our need to disincentivise people from making dangerous journeys to the UK by ensuring that there is no benefit to be gained from entering the UK illegally, while recognising there may be a limited number of scenarios in which it is appropriate to grant permission. I put it to the noble Baroness, Lady Ludford, that this is a proportionate and balanced provision. Therefore, I do not recognise her description of the Bill as “wielding a sledgehammer”.
Clause 30 sets out that a person will not be eligible for British citizenship, British Overseas Territories citizenship, British overseas citizenship and British subject status if they enter the UK unlawfully and meet the criteria in Clause 2. The ban will also apply to someone who enters a Crown dependency or British Overseas Territory unlawfully in a similar way. We have included the other types of British nationality as we do not think it is right that illegal entry should allow a person to acquire any form of British nationality, but also to prevent a person using it as a stepping stone to register as a British citizen. Illegal entry into the UK, a Crown dependency or an overseas territory will have the same effect. We do not want people to be able to enter illegally in any of those locations and use that as a way to acquire citizenship and, ultimately, a right to enter and live in the UK.
Clauses 31 to 34 set out the routes to which the citizenship ban will apply. The key citizenship route which will be affected is naturalisation, as my noble friend Lord Moylan noted. This is the main way in which adults born outside the UK can acquire British citizenship and British Overseas Territories citizenship. The ban will also apply to certain registration routes. However, those applying under provisions that address historical inequalities in British nationality law will not be affected. This includes people born before 1983 to British mothers, those who missed out on citizenship because their parents were not married or those applying on the route for descendants of Chagossians.
Clause 35 allows us to exempt a person from the citizenship ban if treating them as ineligible for citizenship would contravene our obligations under the human rights convention. This means that if a person can demonstrate that, for example, their right to a family or private life can be met only by us considering a grant of citizenship, we will not exclude them from applying. We do not think that acquiring citizenship will usually be essential to allow a person to have a private or family life in the UK; other options, such as leave to enter or remain, may satisfy that. However, in very exceptional cases where considering a grant of citizenship is needed to prevent us breaching our ECHR obligations, Clause 35 may apply. We will publish guidance for nationality caseworkers setting out how to assess human rights in the nationality context.
The amendments tabled by my noble friend Lord Moylan would remove registration routes for British citizenship and British Overseas Territories citizenship from the ban so that it applies only to naturalisation. They would also remove the bans on becoming a British overseas citizen and British subject through registration. My noble friend Lord Moylan has described registration as an “evidence-based process”, with decisions not based on the Secretary of State exercising discretion. I am afraid to say that I disagree with my noble friend as this is not universally the case: some registration routes are dependent on ministerial discretion and there is no automatic entitlement.
Let me explain this further. As my noble friend Lord Moylan said, not all registration routes are included in the ban. Those that allow people to acquire British nationality they missed out on because of previous unfairness are not included; nor are the specific routes for children born in the UK or stateless persons. However, registration routes that rely on residence or specifically for children born outside the UK are included in the ban, as we expect people who want to become citizens to have followed a compliant pathway, including having entered lawfully.
For example, Section 4(2) of the British Nationality Act 1981 allows people who already hold another form of British nationality to register as a British citizen on the basis of five years’ lawful residence in the UK. The residence requirements mirror those for naturalisation: the only significant difference between the routes is that other British nationals wanting to register under that route do not need to meet the knowledge of English and life in the UK requirements. Given that the residence requirements are the same as for naturalisation, it would be appropriate for them to be subject to the ban in the same way as naturalisation applicants. This is the route that BNOs can use if they come to the UK under our scheme and become settled: they can go on to apply for citizenship. It is right that those who apply and come through legal routes should have the right to become citizens, but we do not think it is right that those who enter unlawfully should benefit.
The registration routes for children who are subject to the ban include two routes for children born abroad to British citizens by descent. Both have a residence element: either that the parent lived in the UK for a period of three years before the child was born or the family lived in the UK for the three-year period before applying to register the child. We do not anticipate that children of British citizens would be brought to the UK on a small boat when there are routes available to them as family members, but should that happen, the child will not be able to register as a citizen.
The other child route that is included in the ban is registration of children at the Home Secretary’s discretion. The only statutory requirements are that the child is under 18 and is of good character if over 10. However, guidance sets out expectations about when a child will be registered. The normal expectation is that the child will be settled in the UK, and that the parents will be British, or at least settled. It is unlikely that children who enter the UK unlawfully would be able to meet the normal expectations of having a British or settled parent, being lawfully present and having completed a period of residence, as under the Government’s proposals, children who have entered illegally will be removed. The citizenship ban will, however, prevent a child being registered under this provision unless there are ECHR grounds. This fits with the Government’s intention to discourage parents from bringing children to the UK via dangerous methods, including crossing the channel in a small boat, and that such a child cannot become a British citizen and create a means for the family to stay.
My noble friend raised, quite rightly, the issue of compassionate cases. As I have said the ECHR exemption will allow us to consider registering, in rare and exceptional cases, where a person meets the statutory requirements and granting citizenship would be essential to allow them to exercise their family or private life.
Baroness Chakrabarti (Lab)
I have two short questions. First, how can a child be culpable? The whole point of the Bill, as I understand it, is that people should not be encouraged to come by illegal means, they should not jump the queue, et cetera. We disagree about that, but none the less, in that conversation about culpability, how can a child be culpable? Secondly, why should the ECHR take on the slack of compassion? There are many members of the Minister’s Government who do not think we should even be signatories of the ECHR any more, and now the ECHR is being relied on for discretion and for slack and compassion. How can that sit well with this Government?
Lord Murray of Blidworth (Con)
On the first point, there is no suggestion that these measures impute culpability in the way that the noble Baroness suggests. On the second point, I would have thought that the noble Baroness would approve of the fact that the statute relies upon the convention rights as being the pressure valve for exceptional circumstances in the way that I have described.
Baroness Lister of Burtersett (Lab)
It may be that I have not quite understood what the noble Lord is saying, but the noble Baroness, Lady Ludford, and I specifically asked the kind of question that was posed by the JCHR. Why have the Government narrowed the reference down from the original wording of the clause to the ECHR, when originally it was to any other international agreement to which the United Kingdom was a party? Why has that gone?
Lord Murray of Blidworth (Con)
The answer, which I will turn to in a moment, is that it was considered that greater clarity and concision was needed. In that respect, it is the Government’s view that the test set out in Clause 35 meets that requirement. That was the reason for the change.
Turning now to Amendment 98ZA—
Lord Moylan (Con)
Before my noble friend turns to that amendment, I am of course not a lawyer but really quite a simple soul, who is struggling to catch up in some ways with the things he has explained to us. But it seems—forgive me if I have grasped this entirely wrongly—that we are now talking about two quite separate Bills. In one Bill, if your pestilential foot is set upon English soil the Home Secretary, as the Secretary of State, has a duty to remove you forthwith. That duty having been satisfied, the question might arise in your mind: are you in fact entitled to registration as a British national on the facts of your case? I fully accept that a degree of discretion is always involved in judging these facts, because they will rarely be compelling either way. You would be doing this, presumably, from your new home in Rwanda or whatever country it is to which you have been safely deported.
On the other hand, the Bill my noble friend is describing is one through which these people will, having landed illegally, already have acquired some sort of settlement here—the Home Secretary, presumably, having failed entirely in the duty that we are imposing on her to remove them. They will be exploiting the advantages of that settlement and clocking up hours on the clock, qualifying increasingly for British nationality, which my noble friend thinks—I rather agree with him—is a little unfair because you are getting ahead of the queue by getting in illegally. Then the clock is running and you would be accumulating all the benefits. Which Bill are we discussing here? The Bill I thought I was discussing was one through which the vast majority of the people who would be making a claim for registration of British nationality, with very few exceptions, would already have been subject to the duty to remove. How many does my noble friend think will not have been subject to it?
Lord Murray of Blidworth (Con)
I thank my noble friend for that contribution. The position, as he outlined in his speech, is that the deterrence effect takes its force from a number of sections in the Bill: the first, obviously, being the detention and removal, as he rightly identified; the second being the bans on the ability to settle or stay here, the idea being that that disincentivises people from entering illegally using dangerous routes. I do not accept that there are two Bills in the way that my noble friend identifies. The reality is that the question of registration of citizenship, which he raises, is unlikely to arise in as many cases as the naturalisation circumstance—I think we can agree on that—so it is natural that what we are talking about is probably an exceptional state of affairs, in any event. That is potentially why my noble friend perceives a dissonance between the deterrent effect and the two factors, but in fact there is no such distinction.
Amendments 98ZA and 98EA, tabled by the noble Baroness, Lady Ludford, seek to expand the circumstances in which the bans on settlement and citizenship are to be disapplied. The noble Baroness, Lady Lister, also touched on this issue. We consider that the circumstances in which a grant of settlement or citizenship would be an appropriate remedy are wholly covered by the ECHR, so our view is that the addition of other international agreements is unnecessary, hence the amendment, as we have already canvassed.
I turn now to Amendment 98I tabled by the noble Baroness, Lady Brinton. This seeks to provide a broader protection for those holding British national (overseas) status. We do not believe this is necessary. The clauses which prevent people from obtaining various forms of British nationality already do not mention British national (overseas) status. This is for the simple reason that no one has been able to obtain that status since 1997 and, consequently, there is no need to ban people from obtaining it should they arrive illegally.
We already have in place a dedicated migration route for people from Hong Kong and, as the noble Baroness knows, it has been a significant priority for the Government and the department to offer this route to British national (overseas) people from Hong Kong in response to the situation there. We have done a great deal for the citizens of Hong Kong and hope to continue to do so. As cited in my response to my noble friend, Lord Moylan, a route to citizenship exists under Section 4(2) of the British Nationality Act 1981. There should therefore be no reason for a person holding British national (overseas) status to arrive illegally in the manner which would mean they fall under this Bill’s provisions.
Baroness Kennedy of The Shaws (Lab)
I was just going to posit to the noble Lord that some of these people having to flee are aged 16 and 17 and were involved in demonstrations and so on and then fled by unusual routes out of Hong Kong. Some of them are making their way via Europe to join family members here in the United Kingdom. Would they automatically, under this Bill, be deprived of ever joining their families?
Lord Murray of Blidworth (Con)
I thank the noble Baroness for raising that. In fact, I was just turning to that very issue.
The noble Baroness, Lady Brinton, asked a couple of specific questions about the children of BNO passport holders—the issue that the noble Baroness now raises again. These address issues which fall outside this Bill; none the less, I can advise the noble Baroness and others interested in this topic that dependants of BNO status holders who themselves do not hold BNO status do not need a valid Hong Kong Special Administrative Region passport to renew their BNO visa. However, I am afraid that renewal of Hong Kong Special Administrative Region passports is not something the UK Government can assist with and until they qualify for British citizenship, such children are not eligible for a British passport.
The Government’s view is that this is not relevant to this clause, but I am, however, very interested in this topic and can entirely understand the concern that has been expressed. I would be content to meet the noble Baroness and perhaps the right reverend Prelate, the noble Baroness, Lady Lister, and some BNOs to discuss this issue because it is obviously important. I suggest that this amendment is not the mechanism for us to discuss this, but I entirely understand that clarification and explanation is needed.
Baroness Brinton (LD)
I am very grateful for the Minister’s answer. One of the reasons why I wanted to lay this probing amendment is that BNO paper-holders feel they are getting a clear message from Border Force and immigration officials that their children do not have that protected status. It is that hole that we are trying to get the answer to, and we have not had it yet. I am very grateful for the meeting, but they need to know because at the moment some of them are being told that their children have no rights and should have Chinese travel documents. If the Government’s officials are saying that, surely that is wrong.
Lord Murray of Blidworth (Con)
My Lords, clearly this needs to be looked into and I hear what the noble Baroness says. After the conclusion of the Committee we can have that meeting, explore the issue and I can respond in full. I am certainly not unsympathetic to the points raised.
The benefits of permanent settlement and British citizenship should not be available to those who come to the UK illegally. These clauses serve to underline our core message that if you come to the UK unlawfully, you will not be able to build a life in this country. I commend Clauses 29 to 36 to the Committee and invite the noble Baroness to withdraw her amendment.
Baroness Ludford (LD)
My Lords, our debate on this group has given me a new respect for nationality law, which is at least as confusing as I ever imagined. It has always been a rather “Here be dragons” subject for me; that has been fully confirmed by this debate. I need to try to make sense of my scribbles.
One thing still puzzles me: I do not really understand why the Government are excluding registration for some forms of British citizenship but not for others. I remain bemused by that; I shall have to read exactly what the Minister said in Hansard. Perhaps the noble Lord, Lord Moylan, grasped that explanation better than I did.
I have sympathy with the particular issues raised by the noble Lord, Lord Moylan, and the noble Baroness, Lady Lister, on registration. I happen to think that there is more commonality with the issue of excluding routes to naturalisation than the noble Lord, Lord Moylan, wishes to acknowledge or give any quarter to, but on the issue of registration he made some important points. I wish him well in his pursuit of those issues with the Minister, but I also believe that there are serious issues around excluding people from the right to remain and a route to citizenship.
I did not grasp the Minister’s explanation of why the phrase “other international agreements” was taken out by the Government. Why did you—I do not mean the Minister personally; I mean the Government and the Home Secretary—put it in the original draft of the Bill a few months ago and then take it out if it did not meet the tests of clarity and concision? I think that was the Minister’s explanation. I accept that taking out those few words makes the clause more concise, but I do not think that doing so makes it clearer because we are then left wondering how the Government are going to secure compliance with those other international agreements —including the refugee convention, the statelessness conventions and the UN Convention on the Rights of the Child—which are not referred to in the Bill.
In answer to the noble Baroness, Lady Chakrabarti, the Minister tried to explain that hanging fast to the ECHR was some new discovery by the Government. As I said last week, we tend to find it quite confusing as to when the Government like the ECHR and when they do not. They appear to act rather fast and loose on this subject.
I applaud the probing amendment in the name of my noble friend Lady Brinton. I hope that she gets a fruitful meeting with the Minister because, as she and other noble Lords said, this issue seems to be the subject of considerable muddle and is having a severe impact on people’s lives. It is giving them extra anxiety. They have had to leave home and come to this country, but now they are being given the runaround by Home Office staff.
I was left unclear, it has to be said, on the situation raised by the noble Baroness, Lady Kennedy. What will happen to the dependants of BNO status holders who are having to leave Hong Kong irregularly and perhaps also arrive in this country irregularly? I am not clear whether we are sure about how their welfare and status will be assured. The Minister said that BNOs are not covered by this Bill, but if somebody who is not a BNO but is a dependant of one arrives in this country irregularly, surely they will potentially be subject to the Clause 2 duty to remove.
Also—and almost finally—the noble Lord, Lord Moylan, highlighted a very interesting contrast between the Government wanting a duty to remove people but wanting only a discretion to be fair to them in legal and human rights terms. That does not seem very consistent. So I end by saying that I still feel very firmly that the duties under Clause 29 and 35 should be expressed in terms of not a discretion but a duty to obey our international legal obligations under the ECHR and other international treaties that we have signed.
Lord Murray of Blidworth
Member's explanatory statement
This amendment is consequential on the amendment in the name of Lord Murray of Blidworth at page 5, line 38.
Baroness Ludford (LD)
I warned your Lordships that I would keep popping up this evening, but I am glad to say that the cavalry is coming to my assistance. On the Bench opposite there are all my legal heavyweight friends who are going to row in on this issue. In moving that Clause 37 should not stand part of the Bill, I shall speak similarly with regard to Clauses 38 to 42 and in support of my Amendments 114 and 115 as well as all the other amendments in this group.
At the moment, under existing law, a human rights claim would effectively suspend a claimant’s removal; the suspensive effect of a human rights claim is a crucial safeguard against individuals being removed to face human rights abuses before the validity of their claim has been established. As was referred to in earlier groups, we on these Benches believe that pursuing a claim from another jurisdiction is likely to be very difficult and in some cases impossible. We were talking about trafficking victims earlier, but I contend that it applies to anyone trying to pursue a claim from abroad. The European Court of Human Rights has held that the right to an effective remedy under Article 13, taken together with Articles 2 and 3, guarantees the ability to present an asylum claim effectively. We would say that you cannot do it effectively if you are outside the country.
Clause 4 of the Bill makes it clear that the Clause 2 duty on the Secretary of State to make arrangements for removal will still apply to a person making a claim that removal would violate their human rights. The continuing application of the duty means that, under the Bill, these claims would all be non-suspensive. The Bill provides narrow exceptions to this non-suspensive effect by establishing two categories of suspensive claims that prevent the removal of the claimant while they are ongoing: the serious harms suspensive claim and the factual suspensive claim. These are the only ways in which anyone who satisfies the Clause 2 conditions—whether they are seeking asylum, have been trafficked or have otherwise come without permission—would be able to challenge their removal before it takes place. Even a successful claimant will remain subject to the Secretary of State’s removal duty and prohibition on getting leave to enter or remain under Clause 29, as we have just been discussing, and will thus remain in a state of limbo regarding their immigration status—at least theoretically still awaiting removal—so it does not necessarily solve the problem. Most human rights claims will stay non-suspensive and have to be pursued from outside.
I turn to the test for these suspensive claims, which I think is where some of the amendments come in. The test established in the Strasbourg court is where substantial grounds have been shown for believing that the person in question would face a real risk. However, this appears to mean that individuals who can establish a real risk of treatment contrary to Articles 2 or 3 but cannot establish that it is imminent would still be removed under this Bill and left to pursue their claims from overseas. The JCHR says, and we on these Benches agree, that this would likely breach the Government’s obligations under the ECHR—the convention to which the Government are newly converted.
Another problem is that a serious harm suspensive claim would have to contain compelling evidence that the serious harm condition is met. This appears to be a new evidential standard created by this Bill. Freedom from Torture told the JCHR that this amounts to
“an extremely high evidential threshold which may, in fact, be higher than ‘real risk’ or even ‘the balance of probabilities’. How an individual who has just fled persecution could provide evidence to this threshold is unclear”.
The next problem is that the Bill retains a power for the Secretary of State to make provision about the meaning of “serious and irreversible harm” in regulations. Our Constitution Committee considers that
“the implications of this definition are so significant that it should be amended only by primary legislation unless any delegated power to do so is limited to prevent fundamental risks of harm being removed from the definition”.
The committee supports my proposition that Clause 39 should be removed from the Bill or heavily circumscribed.
This is also the subject of criticism by the JCHR. Not only does the committee
“urge the Government to reconsider its decision to make human rights claims non-suspensive, and the extremely high threshold imposed to establish serious harm suspensive claims”
but it believes:
“The meaning of ‘serious and irreversible harm’ should not be open to amendment by regulations”
and:
“Clause 39 should be removed from the Bill”.
Lastly, timeframes are the subject of my Amendments 114 and 115. In the Bill, the Government are imposing very tight timescales: the lodging of a claim within seven days following receipt of the notice, a decision within three days and appeal to the Upper Tribunal within six days. My amendments aim to increase both the claim and the decision deadlines to 30 days. All in all, my amendments in this group, with the support of other noble Lords, are designed to restore better fairness to the possibility of people appealing against removal. I beg to move.
Lord Etherton (CB)
My Lords, I will speak to a number of amendments in my name in this group: Amendments 100, 102, 103, 104, 105, 107, 108, 109, 111 and 112, all of which are supported by my noble friend Lord Carlile of Berriew, who is a co-signatory. I am grateful to him and to the noble Lord, Lord Cashman, who has also supported one of them. I am also grateful to the Minister for a remote meeting with me to discuss my amendments, which I appreciated.
We are here dealing with the situation where a person claiming refugee status has been given a third country removal notice. That notice will be for removal to a country specified in Schedule 1, and the refugee claimant has a well-founded fear of persecution if they are removed to that country. Under the Bill, the removal notice can be challenged only by a serious harm suspensive claim. The serious harm condition is defined in Clause 38(3): the person claiming refugee status must, within a specified period called “the relevant period”,
“face a real, imminent and foreseeable risk of serious and irreversible harm if removed … to the country or territory specified in the third country removal notice”.
The majority of my amendments in this group focus on the inappropriateness of the requirement to show an imminent risk of “irreversible” harm within a specified period.
The first point to note is that, by way of general observation, whereas the serious harm suspensive claim focuses on the situation of an individual claiming refugee status, the well-established approach both internationally and under our own jurisprudence is to ask, in the case of a “particular social group” within Article 1A(2) of the refugee convention, whether the members of that group have a well-founded fear of persecution by virtue of being a member of that group.
Secondly, that change in approach is explained by the appearance, for the first time, of a requirement for an individual claiming refugee status to be able to resist removal to an otherwise unsafe country only if they can additionally show that they would personally suffer serious and irreversible harm. There is no such requirement in the refugee convention or in any jurisprudence of our own courts or, so far as I am aware, those of any other country.
Baroness Chakrabarti (Lab)
My Lords, it is an enormous pleasure to follow the noble and learned Lord, Lord Etherton. I declare an interest as a former and retired Home Office lawyer and therefore there is a small pension that is being administered by some private company. The important point about that declaration is that when I was a Home Office lawyer in the 1990s, working on matters that included asylum, there was a moment when a particular failed asylum seeker who was removed was shot on arrival in their home country.
I make that point because the noble and learned Lord, Lord Etherton, has made the detailed, forensic point so clearly, but as we move into this part of the Bill and start considering non-suspensive appeals, interim relief and what should happen to someone while there is a dispute about the safety of the place to which they are being sent, that is the story that hangs in my mind, and that is really the best contribution that I can make to the Committee’s thinking when we think about non-suspensive and suspensive appeals, and when we think in due course about my own group of amendments, which is about interim relief from domestic courts and international courts.
To facilitate the swift progress of the Committee I will do something that seems counterintuitive. The Government Chief Whip, who is returning to her place, gave us some very good advice about the Committee not liking reading. Which day was that on exactly? Was it Wednesday or Thursday? Was it this year or last year? I understand that point but this is not a filibuster; this is a very short, pithy quote from the JCHR report, which makes the point better than I could about what is wrong with the particular provisions dealt with in this group.
Noble Lords will find the quote on page 105 of the blockbuster JCHR report, which we will not all be able to read in its totality. Paragraph 333 says:
“Making human rights claims ‘non-suspensive’”—
non-suspensive means that you can appeal from the place you say are not safe in; it is perhaps not the place you say you will be shot but the place you might be sent to where you will be shot or otherwise persecuted—
“can only be consistent with our human rights obligations if pursuing those claims from the destination state is viable”.
This is from the JCHR, which is an all-party committee of both Houses. It continues:
“We are concerned that this has not been established for the states deemed safe for removals”.
That was one of the many excellent points made by the noble and learned Lord. It goes on:
“The threshold required to establish a suspensive claim based on serious harm under the Bill, and the requirement for ‘compelling evidence’ to support it”—
for those desperate refugees—
“puts at risk of removal those who have genuine human rights reasons why they should not be removed. Furthermore, allowing the Secretary of State to redefine ‘serious and irreversible harm’ by regulations opens up the possibility of increasing disparity between the protections against refoulement in domestic law and those to which the UK is committed in international law, including”—
the Minister’s favourite—
“the ECHR. We urge the Government to reconsider its decision to make human rights claims non-suspensive, and the extremely high threshold imposed to establish serious harm suspensive claims. The meaning of ‘serious and irreversible harm’ should not be open to amendment by regulations. Clause 39 should be removed from the Bill”.
Lord Hope of Craighead (CB)
My Lords, I have three amendments in this group: Amendments 101, 110 and 113. Two of these amendments, to which the noble Lord, Lord Anderson, has added his name, are about the meaning of words. They are words to which the noble Baroness, Lady Ludford, drew attention in her opening remarks on this group.
Amendment 101 directs attention to the definition in Clause 38(3) of the serious harm condition. The Bill says that this requirement will be satisfied if the person faces a
“real, imminent and foreseeable risk of serious and irreversible harm if removed from the United Kingdom … to the country … specified in the third country removal notice”.
Amendment 113 directs attention to the requirement in Clause 41(5) that a serious harm suspensive claim must
“contain compelling evidence that the serious harm condition is met in relation to the person”
making the claim. I am grateful to the noble Baroness, Lady Chakrabarti, for drawing our attention to the reference in the JCHR report to the word “compelling” and its consequences.
So far as
“real, imminent and foreseeable risk”
is concerned, we suggest that that phraseology is unnecessarily complex. If a risk is imminent and foreseeable then one would say it must be a real risk and not a hypothetical one. Conversely, if the risk is real then it would follow that that is because it is imminent and foreseeable. These words are unnecessarily complex. It would be better, we suggest, to delete the words “imminent and foreseeable” or, alternatively, delete the word “real”. The real question is whether the word “real” adds anything if the other two words are satisfied.
As for the word “compelling”, there is an important question in addition to the fundamental point raised in the JCHR report as to what exactly “compelling”, in Clause 41(5), is dealing with. Clause 41(5) is telling the asylum seeker what his or her claim must contain. There are various requirements set out, and the first is that it
“must … contain compelling evidence that the serious harm condition is met”.
The first question is who is to judge that the evidence in that claim is compelling? The clause begins by telling us that the Secretary of State must consider the claim, before the end of the decision period, and make one of the following decisions:
“that the serious harm condition is met … or … that the serious harm condition is not met”.
Lord Cashman (Lab)
My Lords, I will speak briefly to the amendments in this group. In so doing, I refer your Lordships to my entries in the register of interests, particularly as patron of the AIDS and HIV charity, the Terrence Higgins Trust.
I particularly support the amendments of the noble and learned Lord, Lord Etherton, who brilliantly explained the reasoning behind them. As he says in his explanatory statement to Amendment 105, the current wording of Clause 38(5)(c) is too wide and would preclude
“a human rights claim pursuant to Article 3 of the European Convention on Human Rights”,
which the Government are suddenly clinging on to. It would also preclude a protection claim pursuant to the refugee convention. I am not a lawyer, so I will not dwell too much on those matters; however, I support the argument that what is proposed in this clause is not in conformity with the jurisprudence of the European Court of Human Rights in Strasbourg and not in accordance with the jurisprudence of the United Kingdom.
At the heart of this provision is the removal to the so-called safe countries in Schedule 1. As your Lordships will know, I am not alone in my concerns; they were discussed with great concern on the first and third days in Committee and today. Indeed, the Minister, the noble and learned Lord, Lord Bellamy, tried to reassure me and others that the list was really an amalgam and that the countries, where people who might be subject to discrimination because they belong to a particular social group will be going, might perhaps say, “We don’t want them”. That is a wonderful hypothetical answer, but my reply is: what if a person who is HIV positive is sent to a country, such as Uganda, where that person, if they are lesbian, gay or bisexual, would have to say to their medical practitioner that they are lesbian, gay or bisexual? That medical practitioner, if they did not reveal that information to the Government, would face two years’ imprisonment, while the person receiving treatment themselves could be criminalised. That is just one country from a huge range of countries, not only around the world but particularly within the Commonwealth. Some 80% of the countries of the Commonwealth currently criminalise people because of their sexual orientation and gender identity.
Because of the lateness, I will now take my place. But for the reason I have just cited, and many more, I heartily and unreservedly support these amendments, particularly those of the noble and learned Lord, Lord Etherton.
Lord Carlile of Berriew (CB)
My Lords, I will speak in support of both my noble and learned friends, who sit to my right in the Chamber. I am particularly grateful, as I think the whole Committee is, to my noble and learned friend Lord Etherton for the very clear exposition he gave of the law and of the consequences of these provisions which change the law.
I will put my very short analysis of this into “faults” and “conclusions”. Clause 38 is word soup, full of tautology and contradictions—the sort of thing that makes fortunes for lawyers if they can get in front of judges, like my noble and learned friends in the very senior courts, and make esoteric arguments based on an analysis of the text. The word soup is most certainly not a consommé clarified by the use of egg whites, so that you can see through it to the bottom of the bowl. It is more like a sort of mad minestrone, into which the draftsman has thrown every word vegetable that he or she could find.
Let us look at Clause 38(3), where the “serious harm condition” is in inverted commas. I was taught at school never to use inverted commas, if you could avoid it, because they show a weakness in your argument, unless it is a quotation that someone said. It says:
“The ‘serious harm condition’ is that P would, before the end of the relevant period, face a real, imminent and foreseeable risk”.
Supposing we missed out the words “real, imminent and”, what difference would it make if it simply read,
“before the end of the relevant period, face a … foreseeable risk of serious and irreversible harm”?
If one missed out the words “and irreversible”, would it mean less if it read:
“The ‘serious harm condition’ is that P would, before the end of the relevant period, face a … foreseeable risk of serious … harm if removed from the United Kingdom”?
What are they trying to gain by the word soup—the possibility of making bizarre submissions in front of the senior courts in which my noble and learned friends sat?
After those comments, if you were asked, “What does all this mean?” by a lay man who might be up at 10.10 pm looking at parliamentary TV or parliamentlive.tv and fascinated by every word in this debate, you would say to him, “Just go and have a look at Clause 38(5)(c)”, which refers to
“where the standard of healthcare available to P in the relevant country or territory is lower than is available to P in the United Kingdom”.
They—or at least those who were well informed enough to be sitting up at 10.10 pm, watching parliamentary TV—would immediately say, “This is deliberate discrimination against gay men”. What else is this for?
We should be ashamed of ourselves if, at least when it comes to Report, we allow this kind of provision to remain in the Bill and do not help my noble and learned friends to pass their amendments. But I hope that we do not have to reach that stage, because this word soup should seem as ridiculous to our noble friends the Ministers as it does to some of us.
Lord Paddick (LD)
My Lords, this has been an interesting, if not bewildering, debate—at least to us non-lawyers. My lay interpretation of the provisions we debated in this group is that they highlight the danger of asylum seekers being removed to countries where they could come to harm by making the level of proof required to suspend removal so high, and by making the evidence required to prevent their removal so compelling—within impossibly short timescales—as to make the likelihood of a successful claim diminishingly small. If it turns out that it is not diminishingly small enough, the provisions allow the Secretary of State to redefine what “serious and irreversible harm” means to make sure that the tap is turned off almost completely.
The noble and learned Lord, Lord Etherton, questioned whether such an approach is compatible with existing law. It is quite clear what the Government are trying to do here: make it impossible for anyone to resist removal from this country under the provisions of the Bill. That is why we do not believe that Clauses 37 to 42 should stand part of the Bill.
Lord Coaker (Lab)
My Lords, this was an interesting debate. I thought I was with lawyers, but then, listening to the noble Lord, Lord Carlile, I realised that I was also struggling to be a chef.
The serious point was well summed up by the noble Lord, Lord Paddick, and it was interesting—it answers the point of the noble Lord, Lord Carlile, about people who may be watching parliamentary TV, and certainly members of the public who read our deliberations. The legal dissection of the clause done by the noble and learned Lords, Lord Etherton and Lord Hope, the noble Baroness, Lady Chakrabarti, and others is of immense benefit. But the real point for members of the public reading our proceedings will be what the noble Lord, Lord Paddick, said: there can be no other interpretation of how these clauses are laid out and, essentially, the Government are trying to make it as hard as possible for an individual to stop their removal from the country when they are subject to the provisions in Clause 2. There can be no other interpretation—this is designed to make it almost impossible. The key question for the Minister is: why is that wrong? Why is it not the case that the Government are seeking to make it as difficult as possible for people to leave?
Lord Murray of Blidworth (Con)
My Lords, Clause 37 provides for two types of suspensive claims, which have the effect of suspending a person’s removal—a factual suspensive claim and a serious harm suspensive claim. A factual suspensive claim is a claim that a mistake was made in deciding that a person meets the four conditions set out in Clause 2. A serious harm suspensive claim is a claim that a person would, before the end of the relevant period, face a risk of serious and irreversible harm if they were removed from the UK to a country other than their country of origin. As the noble Lord, Lord Carlile, noted, the risk must be real, imminent and foreseeable. The serious and irreversible harm test is designed to be a high threshold, reflecting the test of the European Court of Human Rights when considering whether to indicate an interim measure under Rule 39.
These amendments seek to change how Clause 38 defines the risk of harm, lowering the threshold for a serious harm claim to succeed. In responding to the amendments tabled by the noble and learned Lord, Lord Etherton, I start by making the general observation that suspensive claims are relevant to people who have received a third-country removal notice. In this context, an asylum claim would not be relevant. Therefore, they do not impact the definition of “refugee” in the way that he suggested.
Amendments 100 and 108 would remove the requirement for the harm to occur in the period that it would take for any human rights claim or judicial review to be determined from the third country. If accepted, these amendments would enable people who receive a third-country removal notice to raise serious harm suspensive claims against their removal, based on a risk of harm that many not materialise for many months, if not years, after the person’s removal to the safe third country. This cannot be right. We cannot have a position whereby a person’s removal from this country is prevented based on a risk that does not currently exist and may not exist until a significant amount of time has elapsed after the person is removed.
Amendment 101 would remove the need for the risk of harm to be imminent and foreseeable. If accepted, this would have a similar effect to Amendments 100 and 108, enabling a person to successfully challenge their removal based on a risk that may occur a long time in the future.
Baroness Kennedy of The Shaws (Lab)
A great deal of research has gone into the risks associated with countries where the law still criminalises homosexuality. The research of the Inter-American Court of Human Rights has shown that those countries permit levels of murder of gay men and women, violence towards them and discrimination against them in many different forms. The violence experienced by people who are part of the LGBT+ community in those countries is exponentially greater than anywhere else, even in countries known for high levels of violence. The idea the Minister is talking about—risk that is far down the line and many years ahead—is not what we are talking about here. For many people going to those countries, there will be risks almost immediately.
Lord Murray of Blidworth (Con)
The noble Baroness makes an entirely fair point. In those cases, of course, it would be an imminent feature. As she points out, in those circumstances that is something the courts would be able to have regard to.
The inclusion of “imminent and foreseeable” is intended to prevent the courts from considering risks that are dependent on a series of hypothetical events before the harm might occur. That is the reason, as I understand it, that “imminent” features in the European Court of Human Rights practice direction on interim measures. We cannot allow illegal entrants to be able to thwart their removal based on an unknown risk that cannot be foreseen and may not even arise for many months or years, if at all.
Amendments 102, 103, 104, 109, 111 and 112 would remove the requirement for the risk of harm to be irreversible. These amendments would significantly lower the threshold for a serious harm suspensive claim to succeed and undermine the purpose of the Bill to deter illegal entry to the UK. Again, I point out with the greatest of respect to the noble and learned Lord, Lord Etherton, that
“a real risk of serious and irreversible harm”
is the test applied by the Strasbourg court when considering applications for Rule 39 interim measures, as he alluded to during his speech.
Amendments 105, 106 and 107 would remove specific examples of harm, relevant to the availability of healthcare and medical treatment in a third country—a passage that the noble Lord, Lord Carlile, drew the attention of the Committee to—in circumstances that do not or are unlikely to constitute serious and irreversible harm. There is existing case law that indicates that claims based on harm resulting from differing standards of healthcare fall short of the Article 3 threshold. It is simply unjustifiable for those who enter this country illegally to be able to remain here indefinitely and have unlimited access to our healthcare systems solely on the basis that they may not receive the same level of medical treatment in the country or territory they are rightly removed to.
For these reasons, Clause 38 makes it clear that a serious harm suspensive claim based on a risk of harm relating to differing standards of healthcare cannot succeed and, as a result, will not prevent that person’s removal to the safe third country. Clause 38 also makes it clear that a claim based on pain or distress resulting from a lack of medical treatment is unlikely to succeed. By including specific examples of harm that do not or are unlikely to constitute serious and irreversible harm in Clause 38, it is ensured that the courts take a consistent approach in their consideration of the risk of serious and irreversible harm and go no further than intended.
The Bill provides a fast-track process for the consideration of a claim which may temporarily suspend a person’s removal from the UK. Clauses 41 and 42, as the Committee has noted, set out the procedure and timescale for making a suspensive claim and the timescale for a decision to be made on a suspensive claim.
Amendment 113 would remove the requirement for a serious harm suspensive claim to include compelling evidence of the risk of serious harm that a person would face if removed to a third country, as noted by the noble and learned Lord, Lord Hope. Reducing the evidential burden in this way risks the process being abused through spurious and unmeritorious claims, similar to those that we have seen in other immigration applications. Evidence that is compelling is defined as that which is reliable, substantial and material to a person’s claim. I suggest that this is a reasonable requirement and necessary to ensure that the suspensive claims process is not open to abuse.
Lord Hope of Craighead (CB)
I am grateful to the noble Lord for setting out an explanation of the word “compelling”. He used three adjectives and my impression is that that explanation is intelligible; it is not quite as alarming as “compelling”. Would it not be better to substitute the three words that he quoted for “compelling”? “Compelling” could be read as setting a very high standard indeed, which I do not think the three adjectives that he mentioned do.
Lord Murray of Blidworth (Con)
I am grateful for that suggestion from the noble and learned Lord. If I may, I will take a moment to reflect on that and will revert to him in relation to it.
Amendments 114 and 115 would significantly increase the timescales for making and deciding a serious harm suspensive claim, undermining the fast-track process that we have created in the Bill and our ability swiftly to remove illegal entrants. Where the Secretary of State considers it appropriate to do so, it will be possible to extend both the claim period and the decision period. Legal aid will be available to assist a person in receipt of a removal notice in making a suspensive claim. With these safeguards, I suggest to the Committee that it is reasonable to expect a person to bring a suspensive claim within the time periods set out in the Bill. I hope that that addresses the point made by the noble Baroness, Lady Ludford.
The purpose of the Bill is to ensure that illegal entrants are removed as quickly as possible. Extending the decision and claim periods to a total of 60 days for all cases increases the risk that immigration bail would be granted by the First-tier Tribunal and, where bail is granted, that a person would disappear into the community in order to frustrate their removal. The use of detention is therefore necessary to make sure that they are successfully removed from the UK, and our ability to detain a person is dependent on any suspensive claim being both considered and decided quickly. The timeframes outlined in the Bill send a clear message that if you arrive in the UK illegally you will be swiftly removed.
The noble and learned Lord, Lord Hope, referred to the Constitution Committee’s recommendation that the regulation-making power in Clause 39 should be removed from the Bill. We are considering that committee’s recommendations and will respond before Report stage. I would, however, comment that the Delegated Powers Committee did not comment on this power.
The amendments put forward would undermine the suspensive claims procedure and the timeframes outlined in the Bill, where what this Government need to do is send a clear message that if you arrive in the UK illegally you will be swiftly removed. For the reasons that I have outlined, I ask that noble Lords do not press their amendments.
Lord Etherton (CB)
Before the Minister sits down, there were two specific questions that I raised at the end of what I said that I would like an answer to. I do not believe that he has answered them at the moment.
The first is confirmation that there is nothing in the Bill that in any way derogates from the decision of the Supreme Court in HJ (Iran) that a person qualifies as a refugee under our jurisprudence if they would face persecution living openly as an LGBT person. This is relevant to the question of serious irreversible harm, the question being whether it is the Government’s view that you would have to, if necessary, act discreetly and that, if you acted discreetly, the harm would not be suffered. Is it intended, through the Bill, to undermine this landmark decision of the Supreme Court?
The second point on which I would like a specific answer was similarly in relation to the UNHCR’s latest advice—from 2023, I think—about what constitutes an appropriate flight alternative. Where would it be appropriate to deny refugee status because there is a place within a territory or country where there would be no persecution and where it would be reasonable for the person in question to live in an ordinary way?
Lord Murray of Blidworth (Con)
I thank the noble and learned Lord for repeating those questions. He is entirely right that I should have answered them; I apologise for not doing so.
The short answer is that this is a separate strategy regime to the one that the case of HJ (Iran) was decided under. Of course, although the findings in that case and the line of cases concluding in that case would be relevant, the decision will always be taken on the facts of each case. I cannot, I am afraid, give the noble and learned Lord an undertaking on what he might perceive to be an inconsistent decision in relation to that case. I am happy to look into it further and will write to him about that, but that would certainly be my instinctive reaction.
In relation to the further report from the UNHCR, again, each of these matters is fact-sensitive to each serious harm suspensive claim. It would not be right for me to try to predicate at this Dispatch Box what the outcome might be.
Lord Etherton (CB)
I am sorry to come back on this, but it is important. The Government must give some guidance to the judges of the Upper Tribunal who try these cases with these novel and, if I may say so—I am adopting the approach of the noble Lord, Lord Carlile—complicated provisions. These are new provisions that are not found anywhere else in our jurisprudence or in anybody else’s. We are talking about a special type of irreversible harm that has to be predictable. Any guidance that we can give on how the existing jurisprudence and UNHCR advice would still apply will be extremely important for the actual mechanics of delivering justice in these cases.
Lord Murray of Blidworth (Con)
I can only repeat that the Supreme Court decision in HJ (Iran) and the other documents provided by the UNHCR are not relevant in this context because they do not deal with the same mechanics. Those cases were asylum or protection claims, whereas this deals with the specific statutory category of serious and irreversible harm. Of course, although there may be some crossover in the arguments deployed, ultimately they address a different issue. I cannot provide the type of assurance that the noble and learned Lord seeks, I am afraid.
Baroness Ludford (LD)
My Lords, if two noble and learned Lords and one learned with a small “l” noble Lord—if I may call the noble Lord, Lord Carlile, that—are frowning and struggling to understand what the Minister has just said, there is no hope for me. I must confess that I found it pretty difficult to understand. I would be most grateful if the Minister could put the letter that he has promised the noble and learned Lord, Lord Etherton, in the Library so that the rest of us can try to understand.
It would be of great concern if the worry that the noble and learned Lord raised was to be shrouded in doubt in terms of the status of the Supreme Court case, which said that you cannot expect a gay person to have to live in a closeted fashion—that is, you would expect them to be able to live openly for a country to be considered safe. If that precedent were to be put in any doubt, it would have serious implications, as would the concerns that were raised about healthcare; I am not sure what point we have precisely got to on that subject.
The overall concern, if I may put it like this, is if it ain’t broke there is no need to fix it. The courts seem to have got a handle on these issues, and what the Government are doing with their word salad is creating quite a lot of instability and confusion in something that is being handled pretty competently by the courts. They have reached some position on how to assess issues such as risk, foreseeability and reality of risk—and here the Government come, like a bull in a china shop, trying to upset and disturb all that. I am rather minded to think that the Government would do better just to leave it to the courts.
The Minister was not very persuasive in his argument that the wording in the Bill is necessary to stop projections of hypothetical risk. Surely, the courts can be relied on to filter out fantastical imaginings when they assess the reality of risk. I am afraid I found his responses on this group pretty unpersuasive. He keeps coming back to this hoary old chestnut that the use of detention is necessary to ensure swift removal. The idea that this Government are going to ensure swift removal of a lot of people strikes most people living in the real world, to use that phrase again, as for the birds. However, with that said, I shall not oppose the clause standing part.
Baroness Ludford (LD)
Yes, I am sorry, it is me again. I am looking forward to the next group, when someone else will be in charge.
I shall speak to the question of whether various clauses should not stand part of the Bill. I am grateful for the support of the noble Baroness, Lady Chakrabarti, on Clauses 49 and 51, the ouster clauses. The situation at the moment is that, generally, immigration and asylum decisions can be appealed to the First-tier Tribunal with a further appeal to the Upper Tribunal on a point of law, but under the Bill, the rejection of a suspensive claim may be appealed only to the Upper Tribunal, bypassing the First-tier Tribunal. The fear is that while reducing appeal rights may speed up the process, it could be at a significant cost to justice. As with the suspensive claims themselves, the Bill requires the notice of appeal to be supported by compelling evidence, and this could result in a notice of appeal being rejected despite there being evidence that, while not coming under the definition of “compelling”, is nevertheless sufficient to establish the normal tests that the Upper Tribunal would apply.
Also, if the Secretary of State certifies that the claim is clearly unfounded, there needs to be permission from the Upper Tribunal to appeal to the Upper Tribunal and this will be granted only if the Upper Tribunal considers that there is compelling evidence that the serious harm condition is met, with the additional requirement that serious harm is “obvious”. This could result in the Upper Tribunal refusing permission despite being satisfied that the serious harm condition is met. It could have to refuse it on the grounds that it is not obvious serious harm, which could expose the claimant to a risk of irreversible harm in breach of the convention.
We come to the denial of the right to judicially review the decisions of the Upper Tribunal. Justice said in its evidence to the JCHR that since vulnerable individuals will be
“restricted to one, fast-tracked hearing, it is even more important that there is proper oversight from experienced judges”.
The Bill therefore denies the right to judicial review even where an error has been made in reaching the decision. It insulates decisions of the Upper Tribunal from any kind of judicial oversight or correction by the higher courts. This is a cause of considerable worry. The risk to those removed despite having a human rights claim pending is extremely serious. If appeal rights in suspensive claims are limited, there should at least be effective judicial supervision and the Bill should be amended to remove the unnecessary ouster of judicial review.
Lord Paddick (LD)
My Lords, my noble friend Lady Ludford has clearly explained why Clauses 43 to 51 should not stand part of the Bill. The Government just seem to dismiss all the safeguards around access to justice and making sure that the court process has integrity, to speed up any sort of appeal process against decisions under this Bill, to the extent that they are destroying the whole principle of justice. That is why we do not believe these clauses should stand part of the Bill.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the noble Baroness, Lady Ludford, for explaining this really quite complex area. The only thing I was going to ask the Minister was whether he could explain the timeframes within which the appeal must be lodged: seven days for the Upper Tribunal and then 23 days for a further appeal to the Court of Appeal or the Court of Session. Are those timeframes standard in these types of cases? How have they arrived at them?
The noble Baroness, Lady Ludford, expressed the case very fully and I thought the way the noble Lord, Lord Paddick, summarised it was a fair comment about the accessibility of these processes to people taking part in them.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, Clauses 43 to 51 are an essential part of the scheme of the Bill, just like Clause 54 on legal aid, which we discussed earlier. I think by now your Lordships are very familiar with the scheme of the Bill but, just briefly, for the record, I will try to outline these clauses and answer the questions that have arisen as we go through.
The first thing the Bill does is to render certain claims —protection of human rights and modern slavery claims—non-suspensive so that making them does not delay the removal of an illegal migrant to a safe third country. However, the Bill then provides safeguards for removal in two cases: where there is a serious harm suspensive claim and where there is a factual suspensive claim—there has been a mistake as to whether the conditions are met.
Then the Bill goes on to provide that if the Secretary of State refuses those claims there is then an appeal to the Upper Tribunal. In general, the Government’s position is that that provides proper safeguards. It does not dismiss safeguards—if I may use the phrase just used by the noble Lord, Lord Paddick—it strikes a fair balance between expedition and fairness to the migrant. It does not in any way destroy justice because the ultimate decision in relation to the suspensive claims is in the hands of a very respected and senior judicial body and legal aid is available in order to bring those claims.
The basic timetable, to answer the question from the noble Lord, Lord Ponsonby, is that there are seven working days from receipt of the notice of removal to bring the claim, subject to the possibility of an extension if that is necessary to secure justice in a particular case. The 23-day period—I think I am right although I will correct myself in writing if I am wrong—is for the Upper Tribunal to take its decision. Those time limits for appeals are specific to this Bill. This is an expedited procedure that provides strict time limits, but in the Government’s view they are fair time limits.
One should make it clear that we have two situations. The first is where the Secretary of State certifies that the claim is clearly unfounded. In that circumstance, the person concerned has to apply for permission to appeal. That is the current approach, as I and the Government understand it, in the asylum and human rights system. It is effectively to weed out unmeritorious appeals as those designed to do no more than frustrate removal. Those cases are decided by the tribunal on the papers. Similarly, if you make a late suspensive claim—a claim out of time—it will be considered only if there are compelling reasons. That is at the level of the Secretary of State but if they consider that there are no compelling reasons, you can go to the tribunal and say, “There are compelling reasons why I was out of time”. Again, that is for the tribunal to decide on the papers.
These provisions are designed to ensure that claims are made at the earliest opportunity and prevent late claims being used to frustrate removal, undermining the overall effectiveness of the claims process. Once a claim has been made to the Secretary of State but not refused, and then to the Upper Tribunal as well, the whole process is suspended until the tribunal has taken a decision, so there is protection during that period.
Clause 47 also deals with another problem that constantly arises in this kind of case, where somebody tries to raise something new at a late stage. Again, there is a procedure for dealing with that: effectively, that the new matter can be considered by the Upper Tribunal only if there have been compelling reasons for it not to have been raised earlier. In relation to late claims, claims out of time and new matters, there are those checks to prevent the system being abused.
Clause 48 then requires the various timeframes to be respected. It places a requirement on the tribunal procedure rules to secure that those timeframes are respected. As I have just said, there are seven working days for the submission of a substantive appeal—I think that is in Clause 48(1)(a)—and a 23 working-day period for the tribunal to decide that substantive appeal. Those timeframes may, as I say, be extended. What we have here is a process that, in the Government’s view, is essentially a fast-track process but none the less a fair and balanced one.
Lord Ponsonby of Shulbrede (Lab)
These very short timescales are no doubt part of the deterrent effect which the Government are seeking to put in place through the Bill. What estimate have the Government made about the workload on the tribunal process? Is it really sustainable to have such short timescales?
Lord Bellamy (Con)
My Lords, the Government have been working closely with the senior judiciary to ensure that we have the relevant judicial manpower and resources to deal with the workload. I am not, as of this moment, in a position to give specific details but one of the reasons for allowing the judges of the First-tier Tribunal to sit in the Upper Tribunal, which gives us a pretty wide pool to draw upon, is that it enables us to draw upon recorders, retired judges and others. The Government are at the moment satisfied from the discussions they have had that there will be sufficient judicial capacity to meet any reasonably foreseeable workload, but that is a perfectly good question and I thank the noble Lord for raising it.
I will come in a moment to the point from the noble Baroness, Lady Ludford, about judges in general, but I will first deal with government Amendment 115A, which provides for the first set of tribunal rules effectively to be made by the Lord Chancellor rather than, as would normally be the case, by the Tribunal Procedure Committee. That committee normally takes quite a long time to make new rules—maybe 12 months or more—so, since we are working to implement the Bill as soon as practicable, government Amendment 115A provides for the first set of tribunal procedure rules, including these time limits, to be made by the Lord Chancellor so that we have the relevant tribunal procedure rules in place as soon as possible after Royal Assent.
Baroness Ludford (LD)
I thank the Minister for his responses. I am not really persuaded by his answer on Clause 49: that these are just some little minor issues that cannot be JRed from the Upper Tribunal. Subsection (3) states that
“the Upper Tribunal is not to be regarded as having exceeded its powers by reason of any error made in reaching the decision”.
So the fact that it has made an error is apparently not subject to judicial review, which seems to me not particularly minor. An application for judicial review can be made if the tribunal
“has acted … in bad faith or … in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice”.
I do not suppose those crop up very often, and I would imagine that bad faith would be very difficult, if not impossible, to establish, so I do not think there is much wiggle room in Clause 49—but those who know more about how these things work might have other thoughts, and if they do I would be grateful if they would share them with me in due course.
I do not think the Minister covered the point about First-tier Tribunal judges being appointed to act as Upper Tribunal judges. If he did not—I will check what he said—perhaps he could write to me with any answers.
Lord Bellamy (Con)
I will happily write to the noble Baroness. I thought I had covered it when I said that it was creating a pool. The noble Lord, Lord Ponsonby, nods. It is creating a pool of judges so we have enough judges of relevant standing and experience to decide what are essentially factual questions. These are relatively limited factual questions.
Baroness Ludford (LD)
I apologise. I was clearly inattentive as I was trying to look at the other groups that are coming up. Even so, I think concerns remain about promoting, and possibly overpromoting, people before they are ready. What the Government are proposing to do seems a little odd.
On the tribunal rules, I note the Minister’s citation of a precedent, but at one point he said that the problem is that the committee works too slowly. I would have thought that if processes do not work very well or do not work in a reasonable timeframe, the way to resolve that is to work with the relevant bodies to speed them up rather than to grab power from them. However, I find that this Government seem to have an appetite for grabbing powers from everybody else, whether it is the courts, other agencies or indeed Parliament. I worry that the Government are getting rather too big for their boots. Perhaps one day they will even come a cropper. That said, I think I have probably taken these issues as far as they can go.
Lord Murray of Blidworth
“Procedure for Tribunal Procedure Rules(1) The first time after the passing of this Act that Tribunal Procedure Rules are made for the purposes of any of sections 43 to 48 (appeals in relation to suspensive claims), the Rules may be made by the Lord Chancellor rather than by the Tribunal Procedure Committee.(2) Before making Tribunal Procedure Rules by virtue of subsection (1), the Lord Chancellor must consult—(a) the Senior President of Tribunals,(b) the Lord Chief Justice of England and Wales,(c) the Lord President of the Court of Session, and(d) the Lord Chief Justice of Northern Ireland.(3) The Lord Chancellor is not required to undertake any other consultation before making Tribunal Procedure Rules by virtue of subsection (1).(4) A requirement to consult under subsection (2) may be satisfied by consultation that took place wholly or partly before the passing of this Act.(5) Tribunal Procedure Rules made by virtue of subsection (1) are to be made by statutory instrument.(6) A statutory instrument containing Tribunal Procedure Rules made by virtue of subsection (1) must be laid before Parliament after being made.(7) Tribunal Procedure Rules contained in a statutory instrument laid before Parliament under subsection (6) cease to have effect at the end of the period of 40 days beginning with the day on which the instrument is made unless, during that period, the instrument is approved by a resolution of each House of Parliament.(8) In calculating the period of 40 days, no account is to be taken of any whole days that fall within a period during which— (a) Parliament is dissolved or prorogued, or(b) either House of Parliament is adjourned for more than four days.(9) If Tribunal Procedure Rules cease to have effect as a result of subsection (7)—(a) that does not affect the validity of anything previously done under the Rules, and(b) subsection (1) applies again as if the Rules had not been made.(10) In this section “Tribunal Procedure Committee” means the committee of that name constituted under Part 2 of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007.”Member’s explanatory statement
This new Clause provides for the first Tribunal Procedure Rules made after the passing of the Bill for the purposes of any of Clauses 43 to 48 to be made by the Lord Chancellor and to be subject to the made affirmative procedure.
Lord Murray of Blidworth
“(b) in subsection (9), at the beginning, insert “Subject to subsection (10),”;(c) after subsection (9), insert—“(10) A statutory instrument containing the first rules made for the purposes of section 2AA (appeals in relation to the Illegal Migration Act 2023) must be laid before Parliament after being made.(11) Rules contained in a statutory instrument laid before Parliament under subsection (10) cease to have effect at the end of the period of 40 days beginning with the day on which the instrument is made unless, during that period, the instrument is approved by a resolution of each House of Parliament.(12) In calculating the period of 40 days, no account is to be taken of any whole days that fall within a period during which—(a) Parliament is dissolved or prorogued, or(b) either House of Parliament is adjourned for more than four days.(13) If rules cease to have effect as a result of subsection (11)—(a) that does not affect the validity of anything previously done under the rules, and(b) subsection (10) applies again as if the rules had not been made.””Member’s explanatory statement
This amendment provides for the first rules made by the Special Immigration Appeals Commission under section 5 of the Special Immigration Appeals Commission Act 1997 for the purposes of section 2AA of that Act (inserted by Clause 51(5)) to be subject to the made affirmative procedure.
Lord Murray of Blidworth
Member’s explanatory statement
This amendment and the amendments in the name of Lord Murray of Blidworth at page 54, line 1 and page 54, line 7 modify Clause 52 so that a tribunal (as well as a court) may not grant an interim remedy that prevents or delays, or that has the effect of preventing or delaying, the removal of a person from the United Kingdom under the Bill.
Baroness Chakrabarti
Baroness Chakrabarti (Lab)
My Lords, this may be the graveyard shift, but I will do my best to keep the Committee awake for a little longer. I give huge thanks to all members of the Committee for being here for whatever reason—under pain of whipping, out of love for human rights or whatever it is. I thank you for being here.
The whole Bill is a clash between politics—I would say rather tawdry, populist politics, but politics none the less —and human rights. But this group—Amendments 116 to 119 and the issue of whether Clauses 52 and 53 should stand part of the Bill—is not even about human rights. It is about something that precedes both human rights and democracy itself: the rule of law. In our country, the rule of law came before we had even democracy. I would argue that no civilised society, let alone a democracy, can be sustained anywhere in the world without the rule of law.
Clauses 52 and 53 are, in effect, about ousting the jurisdiction of domestic and international courts to grant interim relief—interim injunctions in our domestic courts and interim measures in the European Court of Human Rights. They deal with some of the concerns that have been raised in previous groups about what you do when you have not actually considered the person’s substantive claim yet. They say, “You send me to Rwanda, Uganda et cetera. I will not be safe there. Bad things might happen to me there and/or I might be sent on to the country from which I originally came, where I feel I would be killed or tortured”. This is about interim relief: whether the courts should be allowed to grant it and whether our Government should respect that. All other parties to litigation have to respect the decisions of courts in relation to interim relief when there is an arguable case and a real risk.
If noble members of the Committee will forgive me, I will take the clauses backwards to make my point better. I will start with Clause 53, work backwards to Clause 52 and come to the amendments last.
Clause 53 deals with the European Court of Human Rights, and I am delighted to see the Foreign Office Minister in the Chamber to hear this. I am very grateful for that, because this is a matter of foreign policy and our relationships with the Council of Europe and the wider world, as well as a domestic legal matter.
Baroness Ludford (LD)
My Lords, I can be relatively brief. I thank the noble Baroness, Lady Chakrabarti, for introducing her amendments so powerfully and with such knowledge. I agree with her that there is a curious disparity between Clauses 52 and 53, and my proposition is that they should be swept away and should not stand part of the Bill. As she said, the Home Office getting its act together and making decent decisions in the first place would be how to reduce the workload and what the Government seem to think is the overreach of the courts—I do not agree that it is overreach. If you get things right first time, you would not need to keep attacking the courts.
Clause 52 is a straightforward ban on domestic courts granting interim remedies to stop the removal of a person from the UK. We are familiar with this “courts are enemies of the people” stuff. The interim remedies are valuable because they allow the courts to maintain the status quo while a claim is considered. When the harm in question is a violation of human rights, the ability to freeze the situation is valuable. Denying the courts the ability to use interim remedies when justice demands it undermines the guarantees of Articles 2 and 3 of the ECHR. Clause 52 should be removed, and I am glad to say that the JCHR agrees.
Clause 53 is a different animal altogether. It is really rather peculiar, and it takes a strange and circuitous route to block interim measures from Strasbourg, by giving a Minister discretion to decide whether or not to disapply the duty on the Home Secretary to remove the person. Given the negotiations under way over the procedure for deciding interim measures, as reported in the press and alluded to by the noble Baroness, Lady Chakrabarti, this clause appears to be more politics than law. It is strange, given that the Prime Minister was recently in Reykjavik, at the summit of the Council of Europe—and given that the JCHR’s recent report says:
“We welcome the Prime Minister’s recent reaffirmation of his ‘deep and abiding’ commitment to the ECHR”
and the European Court of Human Rights, made at that very recent summit.
Then, the Government propose in Clause 53 to give Ministers permission to act in direct violation of the UK’s obligations under the ECHR. Talk about right hand and left hand: it is not only incoherent but provocative. That does not seem wise, if the aim is open and good-faith negotiation on possible procedural reform. It is very reminiscent of the way the Government went about dealing—or rather, not dealing—with Brussels over the Brexit negotiations: always aiming to antagonise, then turning around and saying that they are punishing us.
Clause 53 is irresponsible and it is not going to progress any negotiations, in so far as they are necessary, and given the small number of interim measures issued by the Strasbourg court, it seems to be taking a sledgehammer to crack a nut. Not only is Clause 53 likely to hinder discussions on procedural reform, if that is necessary; it makes broader conflict with the European Court of Human Rights all but inevitable. If there is dissatisfaction with the procedures in Strasbourg, the solution is to pursue reform at the European level—and there have been many instances of discussions in the Council of Europe about the processes of the convention and the court. It is not even saying, “We will never obey interim measures”; it gives the Minister the discretion to refuse to comply with our obligations by obeying interim measures. Surely, the UK’s interests are better served by remaining, in the Foreign Secretary’s words, a “serious player” on the world stage, rather than undermining its own influence in this way. I therefore believe that Clauses 52 and 53 should not stand part of the Bill.
Lord Carlile of Berriew (CB)
I want to make a brief contribution on Clause 53. We cannot ask the Minister to comment on the impact assessment, because it is yet to be born, but we have the advantage of the report of the Joint Committee on Human Rights, referred to by the noble Baroness, Lady Ludford. At paragraph 12, on page 121 of that report, in its recommendations and conclusions, it says that
“clause 53 gives Ministers legislative permission to act in direct violation of the UK obligations under the ECHR. Where a Minister chooses to ignore an interim measure and therefore breach Article 34 of the ECHR, clause 53 also prevents the courts from having regard to interim measures when considering proceedings under this Bill. This clause therefore permits deliberate breaches of our obligation to comply with interim measures of the ECtHR. Clause 53 must be removed from the Bill”.
That is the conclusion of an all-party Joint Committee of both Houses of this Parliament, and I trust that, in his response to the debate, the Minister will respond and give us his reasons for not accepting that carefully considered conclusion of the committee in one of the largest reports it has ever produced—and in the time when they could have produced 20 impact assessments.
Lord Sandhurst (Con)
My Lords, I shall speak to Amendment 119 and to the overall challenge to Clause 53. To be absolutely clear, there is no reason why the Government should not ignore and override an interim measure by the Strasbourg court. The requirement that Amendment 119 seeks to impose is also neither necessary nor appropriate. I regret to say that I disagree with the conclusion of the Joint Committee: what is proposed does not breach Article 34 of the convention.
Neither is Clause 53 a circuitous route to block interim measures. It permits Ministers to disapply the duty to remove a person to whom interim measures under Rule 39 have been asserted by the European court. Equally, the Minister will retain the power to ignore the interim measure if he or she so wishes. There are a number of reasons for this. First, as has been explained by my noble friend Lord Wolfson on previous occasions—I think he will add more later this evening—our treaty obligations have force in our domestic law only when Parliament enacts legislation to this effect, hence the Human Rights Act direct effect. Secondly, and of importance to others in this House who, like me, value this country’s good name and reputation, the interpretation which is now used to found this interim measure was placed only in 2005 on Rule 39 by the Strasbourg court. That decision was contrary to previous decisions of that court: in other words, it did not follow what we would call precedent. Indeed, it was contrary to the express intentions of those who drafted the convention, as a study of the travaux préparatoires would make plain.
Time does not permit tonight a lengthy exegesis, but for those who would benefit from further learning on this topic, I recommend the recent policy exchange paper, Rule 39 and the Rule of Law, by Richard Ekins KC (Hon), professor of law and constitutional government at the University of Oxford, with a preface by Lord Hoffmann, formerly a judge of the House of Lords, and a foreword by Lord Sumption, a former Supreme Court justice. It is important for us all to understand that Rule 39(1) states:
“The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings”.
That is just an indication of view or, as Lord Hoffmann says, a shot across the bows. It is not a power to make an order or direction against a contracting party. The court has not been given power under the convention to make an interim order binding on a party to the convention. The convention does not, in terms, as it would have to, confer a power to grant binding interim relief. The member states, including this country, made a deliberate decision in 1949, and subsequently, not to empower the court in this way.
I have already referred to Lord Sumption. He described Professor Ekins’s arguments as timely and powerful. In the preface to the paper, Lord Hoffmann explains that a ruling of a court such as the Strasbourg court is binding upon parties only if the court had jurisdiction to make it, and that not only is there nothing in the language of the convention which expressly confers such a power but that the usual aids to the construction of a treaty—the travaux préparatoires and the subsequent practice of the court—reflect a clear understanding that no such power exists. The court does not have jurisdiction.
What has happened in the court’s recent jurisprudence is that this advisory power—a sensible advisory power—has been assumed to be a power to grant legally binding interlocutory relief. In short, there is no breach of treaty obligations by the United Kingdom if it does not comply with an interim direction, so Clause 53 should remain and Amendment 119 is inappropriate.
Lord Wolfson of Tredegar (Con)
My Lords, the noble Baroness, Lady Chakrabarti, threw down a verbal gauntlet, so let me try to pick it up and answer the central question that she posed. That was this: why should the UK think that it does not have to abide by Rule 39 indications from the court in Strasbourg? The short answer is that the Strasbourg court does not have jurisdiction to grant those Rule 39 indications and certainly not in the manner in which they are currently granted. I will develop that point shortly, but the fact that it is a jurisdictional point—I would say, with respect, that jurisdiction ought to unite all lawyers, even commercial lawyers—means that whether the court has jurisdiction or not is pretty important. I will focus my remarks on Clause 53 and the amendments thereto. I yield to nobody in my respect for the rule of law.
There is a great danger, which happens here and in other places, of the following syllogism being rolled out: the rule of law is a good thing, this—whatever issue you are talking about—is a good thing and therefore this is part of the rule of law. Well, it is not always. Even what is incorporated within the rule of law is a matter of some debate. One can compare the famous work of Lord Bingham, which is expansive to the work of Sir John Laws, which is rather narrower. But this is not about whether we have respect for the rule of law. It is about whether the Strasbourg court in fact has jurisdiction. To put the matter in that way shows respect for the rule of law, because jurisdiction is fundamental to that. Certainly, as far as I am concerned—I am sure as far as the Minister is concerned as well— words such as “game” and “swindle” are not entirely appropriate ways of approaching this topic.
I spoke on this point on Second Reading; we are now in Committee and I am not going to give a Second Reading speech. I expanded on it for those few people who did not read Hansard in the Daily Telegraph a week or so ago. What happened since Second Reading —I touched on it in my piece in the Telegraph—is, as my noble friend Lord Sandhurst mentioned, a powerfully argued paper from Professor Richard Ekins at Policy Exchange. It is unfortunate that in opening the debate on this the noble Baroness, Lady Chakrabarti, did not engage with any of the arguments in that paper; I do not think that she even mentioned it. The paper is a fine piece of legal work. You can agree or disagree with the conclusions. I am going to be disagreeing with the conclusions of the Joint Committee on Human Rights. That, I hope, does not indicate any disrespect or discourtesy towards any of the people who sit on that committee; I just disagree with their conclusions. But I am going to deal with their argument because, if I do not, it is difficult to see how the land actually lies. Again, as my noble friend mentioned, we have a preface and a foreword by Lord Sumption the noble and learned Lord, Lord Hoffmann, two names that, frankly, should make any lawyer sit up and take notice. Even if one does not agree with the conclusion, one has to engage with the arguments.
The main thrust behind the amendments and the clause stand part debate is that the clause breaches international law. That raises the question of whether we have an international law obligation to abide by Rule 39 indications. The short answer is that, no, we do not. Why do we not? Because we have signed up in the convention to abide by judgments of the Strasbourg court against the UK and Article 46(1) where the judgment is of the full court. This is not a final judgment—it is not of the full court—so we have no obligation under Article 46(1).
The Strasbourg court then tries to ground its jurisdiction in Article 34. The reason why it does that— I will not repeat what my noble friend said—is that there is a history to this. There was a suggestion in the draft, back in the 1940s, that the court would have the right to give interim relief. That was deliberately excluded. People tried to persuade the court that it should have that power, but that was rebuffed. The court gave a series of judgments setting out that it did not have that power, but then it did a volte-face and by a majority—I think of one, but I may be mistaken—it held that it did have that power. Of course, the court can change its own jurisprudence, but what it cannot do is to arrogate to itself the jurisdiction. In international law, the court has only the powers that the member states have given to it.
What does the court do? The court seeks to ground its power in Article 34 of the convention. What is Article 34? It is the right not to have your right of access to the courts impeded. I accept that there will be cases where you could justify interim relief and Article 34; a death penalty case would be one of them, as you cannot unscramble that later on, for obvious reasons. However, there will not be many cases like that. The Rwanda case last year was not a case like that. That was a case where the High Court, the Court of Appeal and the Supreme Court had all held that the Government’s promise to bring people back if they were to win meant that there was no impedance of their human rights. That point was decided three times in this jurisdiction, so that was certainly not an Article 34 case.
It also does two other things. First, it shows that if the Strasbourg court is doing a balancing act under American Cyanamid, it is odd that it reached completely the opposite conclusion from that reached by three courts here when applying that approach. Secondly, it belies another point put to the Committee by the noble Baroness, Lady Chakrabarti, in relation to Clause 52. She made the point that if courts here have the ability to grant interim relief, Strasbourg will not interfere. Three courts here heard the Rwanda case and Strasbourg still interfered. I am not sure that that argument works.
Where I agree with the noble Baroness, Lady Chakrabarti, is that there is a procedural problem as well as a substantive problem. The procedural problem cannot solve the jurisdictional problem but makes it worse. Why is there a procedural problem? There is a procedural problem because the rules and procedures do not cater for this jurisdiction, as it has been created out of whole cloth. That is why we have a system at the moment where there is no effective natural justice, where these injunctions are given and indications are made without the state being heard and, importantly, without there being a proper opportunity for the state to put its case even after the indication has been made. That is why these orders are given by a single judge when—the detail is in Professor Ekins’s paper—under the structure of the Strasbourg court a single judge should not have and does not have the powers to do this.
Does this mean that there are no circumstances in which a Rule 39 order can be justified? No, I do not go so far as that. I have already identified a death penalty case as such a case. However, one needs to have a proper review of the court’s jurisdiction. One also needs to have a proper procedure; again, I agree with the noble Baroness, Lady Chakrabarti, who said that it ought to be possible to create such a procedure. It ought to be possible and it must be possible. If one therefore has a Rule 39 indication with a proper procedure which is grounded in Article 34, which recognises the principle of subsidiarity that is now inherent in the court’s jurisprudence and which gives the state an opportunity to come back in a proper timeframe against the order that has been made, I suggest all of that is the way through.
I will take two minutes, if I may, to say something about the report of the JCHR, because it is an important piece of work and I have read it carefully. On page 45, there is a heading before paragraph 129:
“What are the legal implications of this clause?”
This is Clause 53. It goes on to say that some commentators have suggested that
“the UK is not bound to comply with”
Rule 39 orders. It goes on:
“This is particularly because Article 46 of the Convention, which concerns the ‘Binding force and execution of judgments’, only commits the UK to abide by ‘the final judgment of the Court’ and does not mention interim measures”.
I agree with that, except it is only judgments against the UK, but we will let that pass. It goes on to say that the Grand Chamber in Strasbourg
“has held that a failure to comply with interim measures would amount to a violation of Article 34”.
That is right; that is what it has held. It goes on to say, in paragraph 130:
“It is therefore a binding obligation, as a matter of international law, for the UK to act in accordance with interim measures”.
What is the force of that “therefore”? Because the Strasbourg court has held—in the last sentence of paragraph 129—that it would be a violation of Article 34, it is therefore a binding obligation. With the greatest respect to the Committee and whoever authored that part of the report, that is what—before the noble and learned Lord, Lord Woolf, banned the use of Latin in our domestic courts—used to be called an ipse dixit. That “therefore” is a conclusory statement; you simply cannot justify the jurisdiction by saying that the court itself says that it has jurisdiction. That is an entirely circular argument. If I could win all my cases with reasoning like that, it would be a very good thing, even though I am only a commercial lawyer.
Baroness Ludford (LD)
I beg the noble Lord’s indulgence in standing up and asking him a question. I was piqued by a tweet by the noble Lord, Lord Anderson of Ipswich, who is not in his place. He intervened on a Question from the noble Baroness, Lady Chakrabarti, last Tuesday. The noble and learned Lord, Lord Bellamy, was replying. The noble Lord, Lord Anderson, pointed out:
“The member Governments of the Council of Europe, including our own, have repeatedly confirmed the binding nature of interim measures under Rule 39—in the Committee of Ministers, and in the Izmir and Brighton declarations. Is the Minister proud of the United Kingdom’s record of compliance with interim measures?”
The noble and learned Lord, Lord Bellamy, replied:
“On the general point about acceptance in practice of the position of interim measures under the convention, there are two legal views”.—[Official Report, 6/6/23; col. 1244.]
The noble Lord, Lord Wolfson, and others have talked about the paper by Professor Ekins for Policy Exchange and that is a view, but the Minister did not confirm last week that he shared that view. Clause 53 does not actually say that the Government think that interim measures from Strasbourg are not binding. The tweet by the noble Lord, Lord Anderson, noticed that the Minister
“declined to commit to the long-standing governmental position that”
interim measures
“are binding in international law. Views can always change, but surely the government has one”.
What we have not established is what the view of the Government, as opposed to that of Policy Exchange and Professor Ekins, is on whether interim measures from Strasbourg are binding. Our long-standing practice has been to comply with those interim measures. That is what is more important. With full respect to Policy Exchange and Professor Ekins, that is all very interesting, but what is the Government’s view? I do not think that what we are getting out of this whole affair is finding, among this thicket of confusion, what the position of this current British Government is on whether interim measures from Strasbourg should be observed. Indeed, on the Rwanda case, they did observe them, so that is quite different from commentary from Policy Exchange.
Lord Wolfson of Tredegar (Con)
I am grateful for that short intervention. I am now not sure whether I am intervening on the noble Baroness’s speech or she is intervening on mine but she made a couple of points. I do not know whether she has seen my notes because I was going to come to the state practice point in a moment. Frankly, I should not really give this away but that point is probably the best point against the arguments that I am running. I am a little surprised that the noble Baroness, Lady Chakrabarti, did not mention it but I shall do so; it is the best point. I am not speaking for the Government so I am not going to divine what is in the mind of the noble and learned Lord, Lord Bellamy, or that of the Minister who will respond; they can speak for themselves and I will speak for myself.
What I was saying is twofold. First, I was not saying that there are no circumstances in which you cannot justify a Rule 39 order. I thought I had made it clear that, if you can justify it properly under Article 34 in the particular circumstances of the case—such as a death penalty case—and there are proper natural justice provisions, it could be justified. That is my first point.
My second point is that the mere fact that states abide by Rule 39 indications will not, I suggest, be enough for state practice as a matter of international law. The fact that a court tells me to do X and I do it does not show that I accept that the court has jurisdiction to tell me to do it. I might choose to do it because I do not want to pick a fight with the court. One has to find a more detailed and forthright statement that is sufficiently unambiguous, and then look at that coupled with everything else.
I have delayed the Committee long enough. On this point, I direct the noble Baroness, Lady Ludford, to Policy Exchange, on which she is absolutely right. The point made by the noble Lord, Lord Anderson of Ipswich, was picked up and dealt with by Professor Ekins in that report.
Lord Wolfson of Tredegar (Con)
Before I give way, may I make one other short point? I respectfully suggest that state practice cannot give a court jurisdiction when it does not have it. All state practice can do is go to the interpretation of a treaty. It does not go to the creation of a power or a jurisdiction; that point may not be one to discuss as the clock strikes midnight, but now is a good time for me to give way to the noble Lord, Lord Carlile.
Lord Carlile of Berriew (CB)
I am grateful to the noble Lord. I draw his attention to the current, as of today, UK Visas and Immigration guidance, Judicial Reviews, Injunctions and Applications to the European Court of Human Rights. Where it deals with Rule 39, it says that
“a Rule 39 indication is similar to an Administrative Court … injunction but is”,
to state the obvious, made by the European Court of Human Rights. It goes on:
“Where you have been notified that a rule 39 indication has been made, you must … defer removal immediately”
and,
“where the person is detained, make sure this development is considered in relation to any decision to continue with detention”.
In other words, in their current guidance on the subjects that we are concerned with, the Government regard these Rule 39 rulings as binding. That is what the guidance tells the members of the public who have bothered to look at the Government’s own website this evening, as I have.
Lord Wolfson of Tredegar (Con)
I think that goes back to the point I was making a moment ago. With the greatest respect—I do not know whether the noble and learned Lord, Lord Hope, is going to intervene; I will give way if he wants to do so, of course.
Lord Hope of Craighead (CB)
I am grateful to the noble Lord. It strikes me, in reading this clause, that it proceeds on the basis that the UK is bound by the decision. I greatly respect the analysis that the noble Lord, Lord Wolfson, has given us—I am very much in sympathy with it—but, like it or not, the Government’s position has been that it is binding. That is why the clause is so carefully drafted.
Lord Wolfson of Tredegar (Con)
On that, I entirely agree: the clause is very carefully drafted. The Government’s position—as I understand it and I will stop in a moment so we can actually hear from the person we want to hear from, the Minister—is first that they wish to, and will always, abide by international law. Secondly, it gives the Minister a discretion in some circumstances not to abide by Rule 39 orders. It seems to me that if one puts those together the Government’s position has to be that there are at least some circumstances in which you do not abide by a Rule 39 order without breaching international law; otherwise, the two propositions which I set out cannot be put together.
I hope that is an answer to the noble and learned Lord’s question. I am not sure whether the smile indicates it is or is not—
Lord Hope of Craighead (CB)
I think we really have to hear from the Minister, frankly. The clause does set out the various objections and by our jurisprudence the procedures are very defective and I can well understand why one is very uneasy about the whole structure of the rule. The Minister really has to explain the Government’s position and I very much agree with the noble Baroness, Lady Ludford, that that question needs to be answered.
Lord Wolfson of Tredegar (Con)
In which case, I will give one final statement before I finish. On this we all agree—the answer to this issue, I suggest, lies ultimately in Reykjavik. The answer lies in the engagement between this Government and other Governments with the Strasbourg court to improve the jurisprudence, to set the jurisdiction on a proper footing and to improve the procedures. In that way, for those of us—and I include myself—who want this country to remain part of the convention and play a part in its jurisprudence, that is surely the way forward.
Lord Paddick (LD)
If I understand the noble Lord, Lord Wolfson, correctly, he is saying that the solution is not Clause 53 but to engage with the court to ensure that proper processes are followed when it comes to Rule 39 rulings.
Lord Wolfson of Tredegar (Con)
My point is that I am supporting Clause 53. It is not inconsistent to say that we will have Clause 53 and will engage with the court.
Lord Paddick (LD)
What I am hearing from the noble Lords opposite is that if the Government ignored Rule 39 it would not be a breach of international law. But the Government accept that Rule 39 is binding on them; otherwise, there would be flights to Rwanda, surely.
The other thing to say about the two clauses is the stunning silence about Clause 52—absolutely no comment at all. For the noble Lords opposite to say this is not about the rule of law when they have said nothing at all to defend Clause 52 is quite extraordinary.
I think enough has been said—and there has been a very interesting sideshow for 20 or 25 minutes from the noble Lords opposite—but it takes us no further forward as far as the arguments here are concerned. Even if one was to accept the arguments of Policy Exchange, there has been no argument about the fact that Clause 52 is contrary to the rule of law, and that is why we believe that neither Clause 52 nor Clause 53 should stand part of the Bill.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I think everybody is really waiting to hear what the Minister has to say about this. It has been a fascinating debate and, as the noble Lord, Lord Carlile, said, it appears that Government, whatever the rights and wrongs, accept Rule 39—the Minister made that very clear in what he read out—and yet we have had the silence about Clause 52. I do not think I can add anything of substance to the debate at this stage and I look forward to what the Minister has to say.
Lord Murray of Blidworth (Con)
My Lords, Clause 52 underpins the suspensive claims and appeals process by prohibiting the courts from granting interim remedies in relation to any other proceedings which would prevent or delay the removal of an illegal entrant subject to the duty. Amendments 116 and 117 would require the Home Secretary to provide a statement to Parliament, on a case-by-case basis, explaining why the courts should prevent the granting of an interim remedy and for this to be approved by the other place—and only the other place, I note—before the restrictions set out in Clause 52 could come into effect.
These amendments seriously risk undermining our efforts swiftly to remove illegal entrants from the UK. To prevent the courts granting an interim remedy and delaying removal, it would be necessary to seek parliamentary approval in every case subject to the duty to remove. This, I am sure the Committee will agree, is simply not practicable; nor is it necessary or appropriate.
These amendments are fundamentally misconceived. They proceed on the basis that there is an individual rationale for barring interim remedies in each case, but the rationale is universal; namely, that the Bill itself provides for a mechanism for a person subject to the duty to remove to challenge their removal and for removal to be suspended while the claim and any appeal to the Upper Tribunal have yet to be determined. That being the case, it is the Government’s contention that there is no case for the courts separately to grant interim remedies. The blanket approach taken by Clause 52 is therefore entirely appropriate, and I suggest to the Committee that that is an entire answer to the second point made by the noble Baroness, Lady Chakrabarti.
Clause 52 will encourage compliance with the suspensive claims process. It also provides an effective safeguard against other types of legal challenges being brought in an attempt to thwart removal. This will ensure that our ability promptly to remove those with no legal right to be in the UK is not undermined.
Turning then to what may be seen as the main event, Clause 53, I want to make it clear from the outset that the UK is fundamentally committed to the international rules-based order and there is nothing in this clause which requires us to act incompatibly with our international obligations. Under Rule 39, an interim measure may be indicated by the European Court of Human Rights where there is an imminent risk of irreparable harm. The inclusion of Clause 53 reflects the concerns we have raised with the Strasbourg court about its interim measures process, as identified by the noble Baroness, Lady Chakrabarti.
We want the interim measures process to have greater transparency and fairness to ensure the proper administration of justice, reflecting what we would apply in a domestic scenario, as identified by the noble and learned Lord, Lord Hope. This includes clear and reasoned decisions and an opportunity to make meaningful representations before and after a decision is made. It cannot be right that our ability to control our borders is undermined by an opaque process conducted at the last minute, with no formal chance to put forward our case or to appeal that decision. This process risks derailing our efforts to tackle the people smugglers and prevent people making dangerous, illegal and unnecessary journeys across the channel.
Clause 53 affords the Home Secretary, or other Minister of the Crown, personal discretion to suspend the duty where an interim measure has been indicated. This will mean that a Minister may suspend removal in response to a Rule 39 interim measure but, crucially, is not bound by UK law to do so. This will be dependent upon the individual facts of each case. For broader context, I direct noble Lords to the recent and well substantiated paper by Professor Ekins of Policy Exchange, already discussed by the Committee, together with its valuable forewords written by Lord Sumption and the noble and learned Lord, Lord Hoffmann. The key arguments made by Professor Ekins were helpfully summarised and powerfully expanded upon by my noble friends Lord Sandhurst and Lord Wolfson, who I know will have given great consideration to the Strasbourg court’s jurisdiction and procedural rules in their preparation for the Committee.
Baroness Chakrabarti (Lab)
I am grateful to all noble Lords who spoke in this debate—it was not that short—and even more grateful to those who sat through it without getting anything off their chest. I am grateful to the noble Baroness, Lady Ludford, who pointed out, and I agree, that the double act of the noble Lords, Lord Sandhurst and Lord Wolfson, did not help the Government very much, nor was the Committee hugely assisted. To suggest that rulings of interim measures indicated by the court are not binding or important except sometimes is a very strange approach to any kind of court order or indication. If a court order is important only sometimes, we get into who gets to choose and when, which is not the way to develop any kind of trust between people, nations or legal systems.
Neither of the noble Lords mentioned the Russia situation or answered on whether it would be okay for the Russian Federation now to ignore interim indications that prisoners of war in the Russia-Ukraine conflict should not be executed. They also did not mention that, in an earlier group, the Government prayed in aid the Strasbourg test as the test that they want to adopt before anyone can have a non-suspensive claim. That is odd, because you would expect the Strasbourg court to trust Governments more than you would expect His Majesty’s Government to trust removal of individual people to places outside the jurisdiction of the Council of Europe.
I was grateful to the noble Lord, Lord Paddick, for pointing out that Clause 52, which is about our own courts, was totally ignored in the extensive vaudeville. We had the pleasure of the vaudeville but there was no mention of the ouster in Clause 52 of our own courts, and that is rather telling. However, I am grateful to the Minister. I think he got to the point of the debate between us in his closing remarks. He talks about the last-minute opaque process. With emergency interim measures, there is always the possibility for ex parte—get the judge out of the Garrick Club late at night or get the judge up in his or her pyjamas. The crucial thing is that I agree with the Minister that thereafter, even if that emergency relief has to be granted, even ex parte, there ought to be the possibility of looking again, with both parties represented. The Minister and I agree about that.
I think that Clause 52 is totally unconscionable. I think that Clause 53 is the Government’s attempt at negotiating. We are negotiating now by legislation—so we do policy by legislation and now we do negotiation with the Council of Europe via this legislation. I disagree about whether that is the right way to make friends and influence people, but it may be that I am wrong about that. Perhaps it will work, but if it has not worked by the time of Report I will be back, and I will be urging the Committee, and by that point the whole House, to reject not just Clause 53 but Clause 52 as well. For the moment, I beg leave to withdraw the amendment.
Lord Murray of Blidworth
Member's explanatory statement
See the explanatory statement for the amendment in the name of Lord Murray of Blidworth at page 53, line 40.
Lord Murray of Blidworth
Member's explanatory statement
See the explanatory statement for the amendment in the name of Lord Murray of Blidworth at page 53, line 40.
Lord Murray of Blidworth
Member's explanatory statement
This amendment corrects the references to the Clauses in the Bill under which advocacy in the Upper Tribunal can take place, and adds a reference to the Tribunal Procedure Rules made for the purposes of those Clauses.
The Lord Bishop of Durham
Member's explanatory statement
This amendment reinstates the right of appeal against age assessments in respect of putative children whom there is a duty to remove under the Bill.
The Lord Bishop of Durham
My Lords, in moving Amendment 121 I shall speak to Amendments 122 and 126 in my name. I am grateful to the noble Baronesses, Lady Lister and Lady Neuberger, for their support. My comments will also be in support of Amendments 124 and 125, which were tabled by the noble Baroness, Lady Lister.
Before I get going, I note that on the Nationality and Borders Bill the debate on age assessment took place at 2.30 am on 9 February last year. We now find ourselves at 12:25 am discussing age assessments once again. Age assessments are serious matters. I know that it was not designed that this has happened again but it is extremely unfortunate, and since we have more time on Wednesday, I think we could have moved this to Wednesday. However, we have not, so I will carry on.
I believe strongly that these changes need to be made to Clauses 55 and 56 if we are to ensure that the welfare and best interests of children are protected. I will try to be brief, but they are critical amendments that are worthy of full consideration. It is vital that we adequately scrutinise the impact this Bill will have on children; it is therefore a failure in their safeguarding responsibility for the Government not even to have produced a child rights impact assessment. They are asking this Chamber to agree to these additional clauses on age assessments, added on Report in the other place, which on their own admission are more likely than not to be incompatible with conventions under the ECHR—not on the rights of anyone here today but on the rights of children. We have a duty to ensure that their voices are heard. Will the Minister guarantee that an assessment will be published before Report?
The Home Secretary’s duty to detain and remove all those who meet the conditions laid out in Clause 2 does not apply to unaccompanied minors before they reach the age of 18. Therefore, it is clear that if the Home Office inaccurately assesses the age of a child and deems them to be an adult when this is not the case, and they are subsequently removed, the consequences would be irreversible. Can the Minister confirm that the removal of a child in these circumstances would be unlawful?
I was going to follow up by asking whether, in these circumstances, steps would be made to retrieve the child and bring them back under the child protection system in the UK, but the Bill also introduces no right of appeal for a child to challenge an age assessment and places significant limitations on judicial review, so we may not know whether a child has been deported unlawfully. I therefore ask the Minister: when a judicial review is ongoing and the claim is continued out of country and is successful, will arrangements be made for this child to be returned to the UK?
The lack of data required adequately to scrutinise this legislation has been a common theme throughout the Bill and is a prevalent issue for age assessments. The Government currently do not share how many age dispute cases are of children who have initially been sent into the adult system after a flawed decision on their age. However, even based on the incomplete data published by the Home Office, we can see that last year nearly two-thirds of all age dispute cases were found to be children—that was 1,042 children who, if this Bill had been in operation, would have been eligible for removal to a third country.
Numbers are important. The Minister of State justified the inclusion of Clauses 55 and 56 in the Bill by saying that
“around 50% of those people who are assessed are ultimately determined to be adults”.—[Official Report, Commons, 26/4/23; col. 777.]
Can the Minister confirm that this figure is misleading, given that it includes individuals subsequently found to be children after referral to a local authority? A detailed report by the Helen Bamber Foundation found that, of the 1,386 individuals referred to local authorities in 2022, 867 were found to be children and had therefore been placed at risk of significant harm when in adult-based accommodation.
It is not surprising that visual-age assessments by immigration officers can lead to inaccurate judgments. The Home Office’s own guidance for the National Age Assessment Board states clearly that
“physical appearance is a notoriously unreliable basis for assessment of chronological age”
and
“demeanour can also be notoriously unreliable and by itself constitutes only somewhat fragile material”.
Given this acknowledgement, can the Minister confirm that when an individual’s age is disputed, they will not be subject to removal before having met with a social worker and child protection team for a more comprehensive age-assessment process?
Baroness Lister of Burtersett (Lab)
My Lords, Amendments 124 and 125 are in my name and they have the support of the noble Baroness, Lady Neuberger, the noble Baroness, Lady Prashar, who cannot be here but wanted me to say that she strongly supports the amendments, and the right reverend Prelate. I also support other amendments to which I have added my name—indeed, all amendments in this group, including the propositions that Clauses 55 and 56 should not stand part of the Bill. My amendments are more limited and would simply remove the power through regulation to treat those claiming to be a child as an adult, should they refuse to consent to scientific age assessment, and instead stipulate that regulations must make it clear that refusal to consent to such an assessment should not be taken to damage credibility.
The Immigration Minister justified the introduction of these clauses by way of government amendment on the unevidenced grounds that
“a very large number of young adults do pose as children”
and that he did not want
“to see a situation in which young adults are regularly coming into the UK illegally, posing as children, and ending up in our schools, in foster-care families and in unaccompanied-minor hotels, living cheek by jowl with genuine children”.—[Official Report, Commons, 26/4/23; col. 777.]
The new provisions would, he concluded, help to “stamp out this evil”. Clearly, it was not such an evil that these provisions were included in the original Bill. Instead, they appear to be a response to an assertion in Committee from Ben Bradley MP, again unevidenced. Yet, as the JCHR points out, it is not clear why the Government are legislating again on the issue so soon after passing the Nationality and Borders Act, without first subjecting that to post-legislative scrutiny.
More detailed evidence published around the same time by the Helen Bamber Foundation and cited by the right reverend Prelate indicated that the Minister had “wildly”—its word—exaggerated the proportion of age-disputed children found to be adults; this was based on freedom of information requests. Just today, Full Fact reported that a claim made in Parliament by the Immigration Minister that up to a fifth of adult male asylum seekers pretend to be children on arrival was false. FoI data showed that, between January and November last year, the actual figure was 1%. Can the Minister explain the discrepancy please?
This all reinforces the evidence from a Refugee Council study last year, which found that only 14 out of 223 young people with whom it worked in 2021, whose age had initially been determined as “certainly adult” by the Home Office, were in fact found to be adult. The council expressed serious concern that the wrongful assessment of children as adults is causing long-term harm to children as well as significant safeguarding risks. More recently, some of the children it has helped, who are at risk of being sent to Rwanda because of wrongful assessment, spoke of their fear and shock.
A different form of evidence came last year from a highly critical report by the independent Chief Inspector of Borders and Immigration on the processing of small boat arrivals. It said:
“The treatment of those claiming to be children was not child-centred …The age assessment process was perfunctory and engagement with the young people was minimal”.
As the interim Age Estimation Science Advisory Committee pointed out, safeguarding issues do not arise only when adults pose as children. It said in a report:
“There is an equally important safeguarding issue when minors are incorrectly aged as adults and so inappropriately placed in adult facilities where they may be at risk”.
The implications of all this have become that much more serious in the context of Clauses 55 and 56 and of changes to age assessment—rejected by this House last year, to no avail. Our main focus last year was the introduction of scientific assessment and, in particular, the use of X-rays, in response to considerable concerns voiced by health bodies such as the British Dental Association and the Royal College of Paediatrics and Child Health. The latter is particularly concerned about Clauses 55 and 56 in the current Bill, noting that
“The science on age assessment is not robust enough to accurately determine a person’s age, which could result in a child being incorrectly assessed as an adult”.
The interim advisory committee itself proposed a cautious approach given that:
“There is no method, biological or social worker-led, that can predict age with precision”.
It also advocated that
“Any methodology used for the assessment of age must respect and prioritise the dignity of the individual being assessed and should minimise physical or psychological harm”.
I would argue that these clauses do not respect and prioritise the dignity of the child, as they are based on the assumption that the child is lying.
Crucial here is the issue of consent, on which the committee’s recommendation was very clear, saying that the child
“should be provided with clear information explaining the risks and benefits of biological evaluation in a format that allows the person undergoing the process to give informed consent and no automatic assumptions or consequences should result from refusal to consent”.
The committee’s advice underlined that
“in cases of refusal, the applicant should not be automatically considered an adult”,
and that:
“The consequences of refusal should not be so disproportionately adverse as to bias the applicant towards consent”.
It advised that
“it should be accepted that there may be many reasons”
for refusal to consent to biological assessment, which reflect different backgrounds. For example, the child may
“have witnessed or experienced trauma from their own homeland’s government institutions and may view all authority with suspicion and fear”.
Critical too is the question of capacity for consent. Can the Minister say how capacity will be determined and what will happen to children who lack the capacity to consent to the use of scientific methods? The British Association of Social Workers makes the point:
“The question of whether the asylum seeker can consent to the medical intervention is completely separate from the question of whether they are a child”.
Yet Clause 56, which gives the Home Secretary considerable discretion through regulations, in effect conflates the two. In doing so, it undermines the possibility of genuine consent and risks further trauma for children.
In response to the interim advisory committee’s report, the CEO of the Refugee Council said:
“These children simply want to start rebuilding their lives after the traumatic experiences they went through. They put their trust in us hoping they will get the support they need — it’s vital that they are safeguarded and provided the care that they need as they go through the system. The government must not ignore the committee’s findings”.
Can the Minister explain why the Government have ignored the very clear advice of their own advisory committee on the question of consent?
Do the Government at least accept the Constitution Committee’s recommendation that
“The power in clause 56(1) has such significant implications for an individual’s legal rights that it should be subject to the draft affirmative procedure”,
and the committee’s suggestion that “indicative draft regulations” should be made available during the Bill’s passage? In a similar vein, the JCHR recommends that guidance is issued
“as soon as possible setting out what would constitute reasonable grounds for refusing consent”.
Can we expect to see this before Report?
The Constitution Committee also warned that Clause 55 raises serious legal and constitutional issues. Others are better placed to pursue these, but as Justice, among others, points out, it “drastically reduces the accountability” of the Home Secretary for complex decisions about age and permits a child’s
“deportation when they are still pursuing a legal claim that they are a child”—
the normal right of appeal having been abolished.
The supplementary ECHR memo states that the Government
“concluded that it is important to make this change to prevent individuals frustrating the aims of the Bill”.
Could the Minister explain how this mean-minded conclusion can justify the limitations on a child’s rights? As the JCHR points out, this is clearly not in any child’s best interests and is not, in its view, reasonable given the
“far-reaching consequences for their treatment, their lives and their rights”.
What is the Government’s response to the clear recommendation of the UN Committee on the Rights of the Child that age-disputed children should not be removed to a third country? What steps will be taken to ensure that, in the words of the memo,
“The appropriate support and facilities”
are
“in place in the country of removal to ensure that the individual can effectively participate in their judicial review from abroad”?
Even with Zoom et cetera, it is difficult to see how a child can participate effectively from afar.
In conclusion, I simply quote the Children’s Commissioner, who has said in no uncertain terms that it is unacceptable to treat a child as an adult on the basis of their refusal to consent to scientific methods. She asks how genuine consent is possible, free from duress, given the implications of not consenting. She concludes:
“Where a child’s age is disputed … those awaiting resolution should be treated as vulnerable children first and foremost”.
Instead, as elsewhere in this Bill, it is a case of migrant first, not child first and certainly not child foremost.
Lord Hope of Craighead (CB)
My Lords, I will speak to Amendments 123 and 140, following on the points made by the right reverend Prelate and the noble Baroness, Lady Lister of Burtersett. Amendment 123 in the name of my noble friend Lord Anderson, and to which I have added my name, is directed to the provision about judicial review in Clause 55(5), to which the right reverend Prelate drew our attention. His amendments ask for subsections (2) and (4) to be taken out, while this amendment asks for subsection (5) to be taken out, so I am building on the very impressive speech he made earlier.
The provision we seek to have removed states that a court “may quash the decision” relating to a person’s age only on the basis that it was wrong in law, not because
“the court considers the decision … wrong as a matter of fact”.
That is a very considerable restriction. As the Constitution Committee pointed out in its report on the Bill, errors are normally made in this context,
“not because of an error as to the definition of ‘a child’”,
which should be an issue of law, but
“because of problems with evidence to prove that an individual is under 18”.
Indeed, it is very hard to think of any error of law, in the proper sense of that phrase, that might arise in the context of age assessment. The effect of this restriction is to exclude judicial review, even in a case where there is an error of fact which no reasonable decision-taker, taking reasonable care, would have made. That is quite an extraordinary situation to be created by a provision in a Bill of this kind.
The report of the JCHR, which has been referred to often in these debates, says:
“Given errors of fact are highly likely when conducting age assessments based on subjective judgment, this is extremely concerning and gives carte blanche to Home Office errors”.
Without elaborating on that point—instead, I endorse all the points made by the right reverend Prelate—we suggest, in this amendment, that the restriction in Clause 55(5) is unreasonable, given the nature of the assessments that have been made; therefore, it should simply be deleted from the Bill.
While Amendment 123 is about something to be taken out from the Bill, Amendment 140 raises a point referred to by the noble Baroness, Lady Lister. It is about the power in Clause 56(1) to make regulations about the effect of a decision by a person
“not to consent to the use of a specified scientific method for the purposes of”
that person’s
“age assessment … where there are no reasonable grounds for”
that decision. The scope of the power, as explained in Clause 56(2), extends to setting out the circumstances in which civil legal services—in other words, civil legal aid—is not to be available to that person, and the person
“is to be treated as if the decision-maker had decided that”
the person
“was over the age of 18”.
It is significant that the clause does not go so far as to say, without qualification, that, if there are no reasonable grounds for the person’s decision not to consent, the person is to be treated simply as over the age of 18. The approach, which I suppose is to be commended, is to say that it all depends on the circumstances—that is, the purpose of the regulation which will be designed to set out what those circumstances are. Nevertheless, the exercise of this power has serious consequences for the person in respect of whom the power is to be exercised, as the Constitution Committee pointed out in its report.
At present, this power to make regulations is subject to the negative procedure, which we suggest is not appropriate, given the nature of the power being referred to. So our amendment seeks to add regulations made under this power to the list of regulations in Clause 63(4) that
“may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament”.
Given the wide scope of this power and the lack of definition of how it will be exercised, we suggest that it is entirely appropriate for it to be added to that list and not subject to the negative procedure. Those are the reasons that the Constitution Committee wishes to put forward, and I give them in support of the point made by the noble Baroness, Lady Lister.
Baroness Neuberger (CB)
My Lords, I thank the right reverend Prelate the Bishop of Durham and the noble Baroness, Lady Lister of Burtersett, for what they said—they said most of what I wanted to say. I declare an interest as chair of University College Hospital’s foundation trust and the Whittington Hospital NHS trust, because it is relevant to what I will say.
When we debated, rather later than this, the Nationality and Borders Bill in February 2022, as the right reverend Prelate observed, we debated something that allowed the Government to introduce regulations that specified scientific methods that could be used to assess age, including examining or measuring parts of a person’s body and analysing saliva, cell or other samples and the DNA within them. As we heard, the use of scientific methods to assess age has long been the subject of debate, and professional medical bodies have been unequivocal in rejecting the use of dental X-rays, bone age and genital examination as extremely imprecise as methods for assessing age, quite apart from being singularly unpleasant. I have not yet met a health professional who thinks that we should use these methods to assess the age of children or young people.
Yet the legislation went ahead and is now being strengthened, and young people who do not consent will be assumed to be adults, which is really worrying for all sorts of reasons already stated in this House. But, of course, it also undermines the fundamental premise that people have to be able to give free consent to any medical procedure or examination and should not be pressured into undergoing them. In the way that these clauses, and this particular clause, are drafted, there is no way in which these young people are not being pressured into undergoing these examinations and procedures. We should take this very seriously because almost every medical and healthcare body would say that this is unethical.
We debated much of this only 15 months ago. Back then, I said that there was wide concern about age assessments among the various voluntary and statutory agencies concerned with young asylum seekers and among many medical, dental and scientific bodies. But, as I said last week, I chair a small family charity in memory of my parents that provides opportunities for education for young asylum seekers, most of whom are slightly older than the group we are discussing here—but a few have not been. Without exception, they all say that the worst of all this is not only the procedures they are being asked to undergo but the fact that they are not believed. It is almost as if there is an assumption that they are not telling the truth.
It is clear that the use of some of these procedures is unethical—certainly if it is not for the young person’s benefit. Since that is the case, can the Minister tell the Committee why a young person or child who does not give consent to these procedures should always be disbelieved, and why they should be regarded as an adult if they do not consent? As a parliamentary body, we have to look at this really seriously. If we do not trust young people at all to tell us the truth, we are making a terrible assumption about those who come to this country, often traumatised and very vulnerable, looking for a better future.
Baroness Brinton (LD)
My Lords, it is a pleasure to follow the right reverend Prelate the Bishop of Durham, the noble Baronesses, Lady Lister and Lady Neuberger, and the noble and learned Lord, Lord Hope. In this group, I propose that Clauses 55 and 56 should not stand part of the Bill. I will not repeat the points or arguments made so eloquently by noble Lords, save to say to the Minister that I echo all the questions that they posed.
The noble and learned Lord, Lord Hope, referred to the errors with age assessment. Given those, for me one of the key points was made by the British Association of Social Workers, which said that social workers are currently responsible for compiling age assessments, known as Merton assessments, but they are designed to ensure that the children’s needs are met—not for immigration purposes. That raises an issue that many doctors have also raised: that these professionals are registered, and in that registration have to abide by the ethics committee of their registration body, and therefore the individual that they are serving. The problem with the proposals in Clauses 55 and 56 is that they will become the agents of the Government and will not be there to best provide for the needs of the individual concerned.
Doctors also make the point that it is absolutely unethical to expose anyone to radiation from X-rays that are not for clinical purposes. There are risks associated with overexposure, particularly for young people who are still growing. I know from my own familial experience that there is quite often a debate between doctors about the frequency of MRI scans and X-rays.
The other problem, also covered by others, is that, should a person refuse to have scientific assessments, they will automatically be deemed adults. That is balanced by the comments made by the Children’s Commissioner about Gillick competence. I have not heard anybody else ask the Minister what government body will be responsible for ensuring that anybody who is deemed an adult but in fact is not, and therefore should have been under local authority care, will be able to access medical treatment and any other care that they would have been given had they had looked-after status and been with a local authority. Perhaps the slightly shorter way of saying that is to return to the question that we have covered quite a lot of times here in Committee: what is the role of the Home Office in all this, when the status of the child—or potential child—is not understood?
At Second Reading, when I raised this issue about the technology and asked why the clauses should remain in the Bill, the Minister said that he agreed that the technology was not ready but asserted that the clauses should remain because it was quite probable that it would be ready in a fairly short space of time. All the evidence that we have had, including from the previous Home Secretary’s committee, says that it is not ready and that, although it might come, there is absolutely no clear date on the horizon.
From the perspective of these Benches, the science does not work and there is no firm data or technology to show that it will; all the professionals involved have ethical considerations about the registration bodies, and these two clauses would force them to move away from that; carrying out tests such as MRI scans and X-rays for non-clinical reasons could well damage the people undergoing them; and, finally, there is the question of whether the child can give consent, not just because of Gillick competence but because their language ability and the trauma they have been through might not allow them to do so under duress. That is why we believe the only solution is to remove Clauses 55 and 56.
Lord Coaker (Lab)
My Lords, this is a very important group of amendments. I shall not speak particularly to my Amendment 127, supported by the noble Lord, Lord Alton, the noble Baroness, Lady Kennedy, and the noble Lord, Lord Carlile, because the debate has focused on some of the other amendments in the group and, given the hour, it is probably important to say a few words about those.
I start by saying to the Government that, unless they listen to some of the points that have been made by many noble Lords, children who deserve support will not receive it. That is the reality. Therefore, it is incumbent on the Government to look at what the Bill says and, at the very least, mitigate some of it and tighten up some of the various procedures.
Lord Murray of Blidworth (Con)
My Lords, as we have heard, these clauses and amendments take us on to the provisions regarding age assessments. As I set out last week, the duty to make arrangements for removal in Clause 2 of the Bill does not apply to unaccompanied children until they reach adulthood. There is a power to remove them, but the Bill provides, as the Committee well knows, that this may be exercised only in very limited circumstances, such as for the purposes of reunion with a parent or where removal is to a safe country of origin.
Given that unaccompanied children will be treated differently from adults under the Bill, and the obvious safeguarding risks of adults purporting to be children being placed within our care system, it is important that we take steps to deter adults from claiming to be children and to avoid lengthy legal challenges to age-assessment decisions preventing the removal of those who have been assessed to be adults. Receiving care and services reserved for children also incurs costs and reduces accessibility of these services for genuine children who need them.
Assessing age is inherently difficult, as the right reverend Prelate identified. However, it is crucial that we disincentivise adults from knowingly misrepresenting themselves as children, given that unaccompanied children will be treated differently from adults under this Bill. Our data shows that between 2016 and March 2023 there were 8,611 asylum cases where age was disputed and subsequently resolved following an age assessment, of which nearly half—47%, 4,088 individuals—were found to be adults. Accordingly, Clause 55 disapplies the yet to be commenced right of appeal for age assessments, established in Section 54 of the Nationality and Borders Act 2022, for those who meet the four conditions in Clause 2 of this Bill. Instead, those wishing to challenge a decision on age will be able to do so through judicial review, but that review will not suspend removal and can continue from outside the UK after they have been removed.
In addition, Clause 55(5), identified by the noble and learned Lord, Lord Hope—
Baroness Brinton (LD)
The Minister referred to the figures increasing for disputed children, because the figures in 2021 had increased. I am looking at the information from the Helen Bamber Foundation. The foundation makes the point that in 2021, the Home Office started publishing statistics which included children who were being treated as adults by the Home Office after a short visual assessment only, but the actual data has not been disaggregated beyond that. Does the Minister recognise that it is apples and pears—it is not looking at the same thing? A different group of children were being included within the data.
Lord Murray of Blidworth (Con)
I do not recognise those statistics, but I will of course look at the Helen Bamber Foundation report that the noble Baroness identifies. The facts are stark. As I have already identified, a large proportion of disputed age-assessment cases result in the applicant being found to be over 18.
Clause 55(5), as commented upon by the noble and learned Lord, Lord Hope, seeks to ensure that age assessment judicial reviews will be considered by the courts on normal public law principles such as rationality, public law unreasonableness and procedural fairness. Such a challenge on these grounds is not as restrictive as the noble and learned Lord, Lord Hope, has suggested. However, Clause 55(5) will seek to ensure that the court does not consider age as a matter of fact and will not substitute its own decision on age, distinguishing itself from the position of the Supreme Court in the judgment of R (on the application of A) v London Borough of Croydon 2009.
Amendments 121 to 123, tabled by the right reverend Prelate the Bishop of Durham, and the noble and learned Lord, Lord Hope, seek to negate these provisions by omitting Clause 55(2), (4) and (5). They are not amendments which I can commend to the Committee. The right reverend Prelate the Bishop of Durham asked whether a person would be returned to the UK if a judicial review was successful. This would depend on the nature of the court’s judgment and any associated order. We will, of course, comply with any order of the court.
Amendments 124 to 126, tabled by the noble Baroness, Lady Lister, and the right reverend Prelate the Bishop of Durham, would similarly have the effect of neutering Clause 56. Clause 56 again seeks to disincentivise adults from knowingly misrepresenting themselves as children by making use of scientific age-assessment methods already employed in many other European countries, including the Netherlands, Luxembourg, Poland, Slovakia and the Czech Republic. Specifically, Clause 56 will enable us to bring forward regulations to provide that a person is to be treated as an adult if they refuse to consent to specified scientific methods for the purpose of age assessment, and the clause already provides that this would be the case only if the refusal was without good reason. I assure the noble Baronesses, Lady Lister and Lady Brinton, and other noble Lords that the regulation-making power will not be exercised until the science is sufficiently accurate to support providing for an automatic assumption of adulthood.
Given this, it would be premature to provide draft regulations as to the level of parliamentary scrutiny to apply to those regulations. We note the Constitution Committee’s recommendation that the affirmative procedure should apply—a point raised by the noble and learned Lord, Lord Hope—and we will respond in advance of the next stage.
Lord Coaker (Lab)
Can I just pick up something before the Minister leaves this point? If I understood the noble Baroness, Lady Neuberger, correctly, she wanted to know how a child could consent to a scientific assessment that assesses their age.
Lord Murray of Blidworth (Con)
They participate in the particular type of medical scan that is utilised. That is the practice adopted by our European partners.
Baroness Brinton (LD)
Whether it is adopted by our European partners or not, Gillick competence is the key UK law that is used to decide whether a child can or cannot do it. It is not just Gillick competence; it is about whether they have the language to understand what is being asked of them. Could the Minister respond on the Gillick competence point, please? That is UK law.
Lord Murray of Blidworth (Con)
The provisions in the Bill are clear, and, as I say, in due course draft regulations will be provided, and they will be subject to scrutiny by this House. I am afraid there is little point speculating in the abstract on questions of Gillick competence in the absence of the regulations. But the point is clear that it would be contrary to the purpose of these provisions if an applicant was able simply to refuse to participate in scientific age assessment and that were to have no consequences; that would rob such provisions of efficacy, as the noble Baroness would have to concede, I suggest.
Lord Coaker (Lab)
It is quite astonishing to hear a Minister of the Crown say, from what I can understand, that a child can therefore be forced to comply with some scientific method of age assessment. In every area of public life in this country, the competence of a child to make a decision is structured in a way that takes into account the fact that they are children, even if, as in this case, they are potentially children. What the Minister is saying is quite astonishing. I have no idea what it means regarding how you assess the age of a child and ensure that that child in some way gives consent. Is there a social worker? Is there someone acting in loco parentis? Is there some sort of structure that means that you cannot just force a child to take part in some sort of scientific method that looks into their age?
Lord Murray of Blidworth (Con)
I fear that we are speaking at cross purposes. I certainly would not compel any child to participate in age assessment.
Baroness Lister of Burtersett (Lab)
The whole point is that they are, in effect, being compelled. This point was made by the interim age advisory committee—a committee set up by the Government. Why are the Government ignoring its advice? They are doing the opposite of what it says should be done. It said:
“The consequences of refusal should not be so disproportionately adverse as to bias the applicant towards consent”.
That is exactly what is happening.
Lord Murray of Blidworth (Con)
It is difficult to debate these measures. As I say, in the event that the situation is advanced by the development of these scientific methods and regulations are brought forward, we can have further discussions about the provisions on that occasion. However, in principle, there is nothing wrong with having available a protection that would mark the fact that, if you have scientific age assessment, simply saying “I don’t consent” would provide you with an opportunity not to adhere to the scheme that applies to everyone else. For those reasons, at an abstract level, there is no reason you could not have a situation where willingness to undertake a scientific age assessment is given full weight by a decision-maker in a way that, if someone refused to participate, it might not be. It always depends on the circumstances in regulations.
Baroness Neuberger (CB)
I am sorry but can the Minister explain how this can be acceptable when subjecting young people—children—to investigations such as X-rays that are not at all for their benefit is inherently unethical? How can this be justified in the way he has just done?
Lord Murray of Blidworth (Con)
I am not sure that I agree with the allegation that this is unethical because, as the noble Baroness may recall, on a previous occasion when the principles of age assessment were discussed in this House, my noble friend Lord Lilley observed that the radiation risk in taking an X-ray is comparable to that of a transatlantic flight. I suggest that, as long as the appropriate safeguards are in place, there is nothing in principle wrong with inviting an applicant who says that they are under 18 to participate in an X-ray procedure.
Baroness Brinton (LD)
It may be that the noble Lord, Lord Lilley, has expertise that the Committee is not aware of but the Royal College of Paediatrics and Child Health is very clear that every single doctor registered with the GMC—and the equivalents for X-ray technologists and others—would be required, under the terms of their registration, to consider whether the work that they were doing was ethical. It is absolutely confident that it would not be, so one further question here—I do not want us to go into it now because we do not have time—is: how will the Government deliver this measure if all registered professionals are told by their registration bodies that they should not do this work?
Lord Murray of Blidworth (Con)
As the noble Baroness rightly says, now is not the moment to discuss this hypothetical but it is notable that our European neighbours operate such schemes and clearly have professionals who participate. These are all matters that would need to be looked at in the event that the scheme—
Baroness Brinton (LD)
Has the Minister had discussions with the GMC and social workers, for example?
Lord Murray of Blidworth (Con)
The noble Baroness now invites me to embark on a discussion that she just said she did not want to have. I agree with her first position because it is not relevant to the amendment that she raises.
Amendment 127 in the name of the noble Lord, Lord Coaker, would place a duty on the Secretary of State to publish an annual report on scientific age assessment methods, the attendant scientific advice and the statistics relating to their use. The Home Office already publishes such information: quarterly datasets including age disputes are available on GOV.UK—we have heard references to those in Committee this evening—and, when scientific methods of age assessment are introduced, the Home Office will ensure that we report and monitor that information. The Age Estimation Science Advisory Committee continues to provide scientific advice to the Home Secretary and the Home Office’s chief scientific adviser. Their first report was published on GOV.UK, as the noble Baroness, Lady Lister, identified, and the Government will continue to seek advice from the committee. Given that we already publish the kind of information and data proposed by the noble Lord, I submit that his amendment is unnecessary.
Baroness Lister of Burtersett (Lab)
What is the point of seeking advice if it is then ignored? While I am on my feet, because I was not quick enough earlier, the Minister gave some figures that the right reverend Prelate, other noble Lords and I disputed, but it is as if we have not spoken. The evidence we presented was just ignored. It suggests that government Ministers tend to wildly exaggerate the proportion of children who are wrongly assessed as adults presenting themselves as children. We want the Minister to engage, if not now then in writing, with the figures that we came up with. I am appalled that the Minister has not even read the Helen Bamber Foundation report, because that is the best report on age assessment that there is. I very much hope that at least his officials have read it, but I will leave it at that.
Lord Murray of Blidworth (Con)
Of course we consider the advice provided by the Age Estimation Science Advisory Committee and the Home Office’s chief scientific adviser, and we will continue to do so. It is because we are in the process of awaiting such advice that the age assessment process is not fully operational. That demonstrates that we take and appreciate the advice that we are given.
As to the information questions, I will look at the statistics that the noble Baroness raises. I do not recognise them immediately, which is not to say that they are not properly reflective. There are a lot of statistics published on the Home Office website, so I appreciate that there may be some conclusions to draw. I will certainly look at that.
Government Amendment 123C is a clarificatory amendment that simply ensures that Clause 55 applies to any decisions following the regulations made under Clause 56, which automatically assumes someone to be an adult as a result of their refusal to consent to a scientific age assessment. It includes a decision as to whether an individual has reasonable grounds to refuse consent to a scientific age assessment.
We cannot escape the fact that almost half of asylum seekers claiming to be children were found to be adults. Those seeking to game the system in this way create clear safeguarding risks to genuine children and delay their removal. Clauses 55 and 56 are a necessary part of the framework of the Bill to ensure that we can swiftly remove those subject to the duty in Clause 2. I therefore invite the right reverend Prelate to withdraw his amendment.
Lord Paddick (LD)
The Minister did not allow me to intervene earlier, so will he allow me to intervene now? In what world can he say that a child freely consents to a scientific assessment on the basis that, if that child does not consent, they will be treated as an adult and removed from the United Kingdom?
Lord Murray of Blidworth (Con)
We have already canvassed these topics, but there are many ways for a decision-maker to take a refusal to consent into account. It need not be an automatic presumption that somebody is of age; it can be treated in a variety of potential ways, which will be described in the regulations. They will be subject to debate at that time. I am afraid that that is the answer to the noble Lord’s question.
The Lord Bishop of Durham
I thank all noble Lords for contributing to the debate and for interjecting during the Minister’s response with many of the questions that I noted. I repeat what I said earlier: the Minister of State justified the inclusion of Clauses 55 and 56 in the Bill by saying that
“around 50% of those people who are assessed are ultimately determined to be adults”.—[Official Report, Commons, 26/4/23; col. 777.]
To be fair, the noble Lord, Lord Murray, said just under 50%, which is a slight change.
However, I went on to ask whether the Minister could confirm that this figure is misleading, given that it includes individuals subsequently found to be children after referral to a local authority. He has not answered that question, but please do not try to do so now; please write. The Helen Bamber Foundation found that 1,386 individuals were referred to local authorities in 2022, of whom 867 were found to be children. That is about 62% to 63%. Clearly, several of us are going to read Hansard very carefully and we would like the Minister to go away and reflect on the figures a bit further.
For all the reasons that have been raised by colleagues, who I thank for all their support—I also thank the noble and learned Lord, Lord Hope, for his additional proposal, which makes complete sense—the Minister will not be surprised that we are likely to return to this on Report, because we think these things matter enormously.
I think there is an assumption made by the Home Office that it is adults pretending to be children; most of us come at it the other way round, and are worried about children who are deemed to be adults and are therefore placed in unsafe places. Somewhere, the two have got to meet and talk with each other and consider each other. I suggest that the Home Office has some very good conversations with the DfE, social workers and health professionals about how to understand children and how they work, including children who are 16 and 17 years old, because they are still not adults. However, I beg leave to withdraw my amendment.
Lord Murray of Blidworth
Member's explanatory statement
This amendment and the amendment in the name of Lord Murray of Blidworth at page 56, line 36 supplement references in Clause 55 to the court with references to the tribunal.
Member's explanatory statement
See the explanatory statement in the name of Lord Murray of Blidworth at page 56, line 33.
“(7A) For the purposes of this section, the cases in which a relevant authority decides the age of a person on an age assessment under section 50 or 51 of the Nationality and Borders Act 2022 include where a relevant authority is treated by virtue of regulations under section 56 of this Act as having decided that a person is over the age of 18.”Member's explanatory statement
This amendment clarifies that the provisions in Clause 55 about decisions as to a person’s age apply to a case where a decision-maker is treated as having decided a person is over the age of 18 by virtue of regulations under Clause 56.
Lord Murray of Blidworth
“(iii) at the appropriate place insert—““national” includes citizen;”;”Member's explanatory statement
This amendment modifies the amendments to section 80A of the Nationality, Immigration and Asylum Act 2002 in clause 57. The new amendment to section 80A inserts a definition of “national” which applies to references to a person who is a national of a State (in that section and section 80AA of that Act) so that citizens of that State are included. This is for consistency with the freestanding provision in the Bill.
Member's explanatory statement
This amendment seeks to remove Albania from the list of “safe states” with reference to which asylum and human rights claims will be deemed inadmissible.
Baroness Lister of Burtersett (Lab)
My Lords, Amendment 128A is also being proposed by the JCHR. I thank my noble friend Lord Cashman for his support, although I am afraid he has had to leave.
The amendment seeks to remove Albania from the list of safe states with reference to which asylum and human rights claims will be deemed inadmissible. I was prompted to table this amendment following a meeting with a group of young Albanians, which was organised by the Migrant and Refugee Children’s Legal Unit, MiCLU, and the Shpresa Programme. I am grateful to them, and to Professor Helen Stalford, for the information they have provided. All the young people had sought asylum in the UK. Some had been accepted, and some were still awaiting determination of their claims.
The young people had two clear messages. The first related to how they are talked about and perceived, by politicians and the media in particular, which frames discussions about the rights of Albanians to enter and stay in the UK. The young people talked about how hurtful and injurious to their identity it was to be constantly talked about as criminals with no right to be here.
One young Albanian asylum seeker quoted in the MiCLU briefing talked about having experienced racism:
“When you say you are from Albania, people distance from you. People have said I am a criminal and other words. It becomes hard for people to engage in society. Even people who have status”.
Lord Hacking (Lab)
My Lords, I rise—when I get my papers in proper order—to support my noble friend Lady Lister of Burtersett in her Amendment 128A. As she explained, the purpose of this amendment is to remove Albania from the list of safe states in new Section 80AA on page 59 of the Bill.
As I rise, I am looking at the clock at 5.40 am—or rather 1.40 am; happily, we have not got as bad as 5.40 am, and it is certainly better than 4.20 am. I do regret that we are having to debate these important matters so late in the night. My sympathy, first of all, goes to the Ministers: they have had to work so hard on this matter. My sympathy extends to all those friends of the Minister sitting behind him. They seem to have left him now, but earlier there were hordes of them here. But this has happened and it is all part of a purge to get this Bill through in the summer—
Lord Hodgson of Astley Abbotts (Con)
My Lords, I am sure we are all grateful for his sympathy. I am delighted to be here, but we would move forward a great deal faster if we had not had so many repetitious speeches.
Lord Hacking (Lab)
Well, my Lords, I do not know whether the noble Lord thought my speech about sympathy was repetitious. I have not heard it yet today, and I give those words of sympathy with great sincerity.
The important thing is to look at the state of Albania. Albania was a communist state under a particularly vicious dictator, Hoxha, until the mid-1980s. Great steps have been made since then, and when the USSR broke its ranks many Albanians worked very hard in democracy. But things have not always gone right. For example, in 1997 the Government of Berisha, who was then the president of the country, collapsed in the wake of pyramid schemes and widespread corruption. More recently, in February last year the president was subject to impeachment proceedings which were stopped only by the Albanian constitutional court.
I mention that because in the number of years that I acted as an international arbitrator and conducted arbitrations arising out of activities in the former countries of the USSR, time and again one came across very serious corruption which led to feuds and sometimes to heinous blood feuds. Corruption is a matter of great concern, and one wonders exactly how the list of safe states was drawn up; in that list are other countries of similar background to Albania—Bulgaria and Romania to name two. One looks at the Nationality, Immigration and Asylum Act to see what the test is, according to that Act, for the Secretary of State to take their decision. In new Section 80AA(3) it says:
“The Secretary of State may add a State to the list only if satisfied that … there is in general in that State no serious risk of persecution of nationals of that State”.
How strictly has that been applied, if it has been applied at all?
As my noble friend Lady Lister said, there is a lot of evidence of significant and outstanding issues in Albania relating to corruption, trafficking, blood feuds, discrimination and violence against the LGBT community, and stigma and discrimination against ethnic Roma and Egyptian communities and so forth. There are real grounds to be concerned whether, on any definition, Albania is properly placed as a safe country. That view is supported in our own Home Office’s work in 2022 when the UK granted protection status to 700 Albanian nationals, including 60 unaccompanied children.
For all those reasons, I hope your Lordships will feel that they should be on the safe side and remove Albania from the list of safe states.
Baroness Ludford (LD)
My Lords, I will speak to the proposition that Clause 57 should not stand part of the Bill. Before I do, let me say that there are various myths arising around this Bill, one of which is that the Government are going to deport vast numbers of people, and another is that speeches from this side of the Committee are repetitious. I think it is regrettable that that sort of claim is being made. I referred at the beginning of proceedings today to the fact that this Bill got almost no scrutiny in the other place. As Dr Hannah White, the director of the Institute for Government, said last night on the radio, it has just come to expect that we will do that job.
Lord Coaker (Lab)
My Lords, I will be interested to hear what the Minister has to say to many of the questions raised. We will then consider what to do between now and Report.
Lord Murray of Blidworth (Con)
My Lords, I thank all noble Lords who have spoken: the noble Baronesses, Lady Lister and Lady Ludford, and the noble Lord, Lord Hacking.
The measures in Clause 57 aim to deter claims from nationals from safe countries who seek to abuse our asylum system and do not need to seek protection in the UK. It will consequently reduce pressure on our asylum system and allow us to focus on those most in need of our protection.
Treating asylum claims from EU nationals in this way is not new, as I think all noble Lords recognised. It has been a long-standing process in the UK asylum system and is also employed by EU states. However, EU states are not the only safe countries. It is right that we expand these provisions so that they apply not only to nationals of the EU but to other safe countries that we have assessed as generally safe. At this time, the list has been expanded to include the other European Economic Area countries, Switzerland and Albania. This clause also includes powers that would allow us to expand this list further to other safe countries of origin in future.
Furthermore, these provisions will expand this approach to include human rights claims. If a country is generally safe, it stands to reason not only that asylum claims should be declared inadmissible but that any related human rights claims should be treated likewise. If a person has other reasons for wishing to come to the UK, they should apply through the appropriate routes. People should not seek to use our asylum system to circumnavigate those routes.
However, even if a country is generally considered safe, it is acknowledged that there could be exceptional circumstances in which it may not be appropriate to return an individual. If the person does not meet the conditions of the duty and makes an asylum or human rights claim, and there are exceptional circumstances as a result of which the Secretary of State considers that a claim ought to be considered, then their claims will be considered in the UK. If a person meets the conditions of the duty and makes a protection and human rights claim, and the Secretary of State accepts that there are exceptional circumstances which prevent removal to their country of origin, they will instead be removed to a safe third country. Therefore, it is considered that these provisions incorporate appropriate safeguards to ensure that we will not return an individual where it would not be safe to do so.
Amendment 128A in the name of the noble Baroness, Lady Lister of Burtersett, seeks to remove Albania from the list of safe states for the purposes of Section 80A. For a country to be added to the list of safe countries of origin, it must be assessed as safe, as per the test set out in new Section 80AA of the 2002 Act. We are satisfied that, in general, Albania—a NATO member, an ECAT signatory and an EU accession country—meets that test. Indeed, the cross-party Home Affairs Committee, chaired by Dame Diana Johnson, said in its report published just yesterday:
“Albania is a safe country and we have seen little evidence that its citizens should ordinarily require asylum”.
Furthermore, as already set out, the provisions incorporate appropriate safeguards, should it be accepted that there are exceptional circumstances why an Albanian national should not be returned there.
As I have indicated, these sensible extensions to the inadmissibility arrangements which currently apply to EU nationals will help to reduce the pressures on our asylum system and enable us better to focus on those most in need of protection. I commend the clause to the Committee and invite the noble Baroness to withdraw her amendment.
Baroness Lister of Burtersett (Lab)
My Lords, I am grateful to those who have spoken, especially my noble friend Lord Hacking; he has been extremely noble to stay this late to speak, and he speaks from his first-hand experience of Albania.
The noble Lord, Lord Hodgson of Astley Abbotts, said that if there had not been so much repetition, we would not still be here at this time. However, the Minister, in his reply, has shown why sometimes there is repetition: because there is no evidence that the Minister listens. I talked about the Home Affairs Committee and why the response to it was not good enough, but he read his speech about the Home Affairs Committee as if it had not been mentioned. This happens time and time again. The main repetition I heard this evening was from the Government Benches giving very detailed information about the Policy Exchange report over and again. We could have done without that.
It is late, and I do not think that we want to go beyond 2 am, if we can possibly help it; I am shaking with tiredness. The Minister has not engaged at all with the arguments put that, while Albania may be a safe country for many people, it is not safe for everyone. It is just not good enough to say, “Well, in exceptional circumstances, their claims can be considered”. There are some very vulnerable people—people who have fled extremely difficult circumstances that none of us would want to face—who have sought asylum here and been granted asylum here for good reason. I sometimes wonder what the point is of us standing up saying these things, when the Minister then stands up and gives us a response that takes no account whatever of what has been said. That said, I beg leave to withdraw the amendment.