Illegal Migration Bill

Consideration of Commons amendments
Wednesday 12th July 2023 Lords Chamber

Commons Amendments and Reasons

20:01

Motion A

Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 1, to which the Commons have disagreed for their Reason 1A.

1A: Because it is unnecessary, as the Bill does not require any act or omission that conflicts with the obligations of the United Kingdom under the European Convention of Human Rights or other listed international instruments, and it would undermine the UK’s dualist legal system.

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

My Lords, in moving Motion A, I will, with the leave of the House, also speak to Motions D, S, T, U and V.

The Lords amendments do significant damage to the scheme provided for in the Bill. The Bill will only prevent and deter illegal migration if persons who meet the conditions in Clause 2 are swiftly returned to their home country or removed to a safe third country. For that to happen, we must end the cycle of late, repeated and spurious legal challenges. The Lords amendments will perpetuate that cycle.

Motion A relates to Lords Amendment 1, which would replace Clause 1 with a new clause that sets out that nothing in the Act shall

“require any act or omission that conflicts with the obligations of the United Kingdom under”

the five international agreements specified in the amendment.

As I have set out throughout the passage of the Bill, the Government take their international obligations, including under the ECHR, very seriously, and there is nothing in the Bill that requires any act or omission that conflicts with the UK’s international obligations. The only way to break the business model of the criminal gangs and to deter illegal migrants is if it is abundantly clear that the only outcome of illegal entry is not a new life in the UK. Therefore, it is essential that we take bold steps. Although some of the provisions in the Bill are novel, the Government are satisfied that the Bill can be implemented in line with convention rights.

As my noble friend Lord Wolfson set out on Report, Lords Amendment 1 is also objectionable from a constitutional perspective. In the United Kingdom, we follow a dualist approach, whereby international law is integrated into domestic law solely through parliamentary legislation. The Government are often criticised for rushing legislation and not allowing adequate scrutiny. Here, the tables are turned. Amendment 1 has profound and wide-ranging implications. It should not be shoehorned into this Bill without proper consideration of its consequences and an opportunity for Parliament properly to scrutinise the significance of such a step. If a future Government want to incorporate into domestic law the refugee convention or the UN Convention on the Rights of the Child, it is open for them to do so, but that would be a significant legislative undertaking and a profound change to our domestic legal landscape. Amendment 1 is not the way to do it.

I turn to Motion S and Amendments 74B and 74C from the noble and learned Lord, Lord Etherton, which relate to the meaning of serious and irreversible harm. Serious harm suspensive claims recognise that there may be a clear reason as to why a person cannot be removed to a particular third country specified in the removal notice, while any human rights claim in respect of a removal—or related judicial review, if that took place following removal—is resolved. These claims must be based on the fact that the person would face a real, imminent and foreseeable risk of serious and irreversible harm if they were removed for such a temporary period. This test reflects the approach and terms on which the European Court of Human Rights may decide to indicate interim measures under Rule 39 of their rules of court. It is fitting that we use it here in an analogous situation.

We also continue to believe that it is helpful to decision- makers and the courts to set out in the Bill specific examples of harm that do not, or are unlikely to, constitute serious and irreversible harm. This will ensure a consistent approach in the determination of claims by the Home Office and appeals by the Upper Tribunal. That said, we have reflected on the debates on these clauses in this House and revisited the recommendations from the Constitution Committee. I am grateful to the noble and learned Lord, Lord Etherton, for his time in discussing his concerns. As a result, we have brought forward an amendment in lieu which limits the power by regulations to amend the meaning of serious and irreversible harm, such that the power cannot be used to remove the existing examples of harm that constitute serious and irreversible harm.

I reiterate two points made by my noble friend Lord Stewart on Report. First, Clause 38 makes it clear that persecution and onward refoulement are examples of harm which constitute serious and irreversible harm for the purposes of a suspensive claim. Secondly, if the open expression of a person’s sexual orientation would prevent them living in a specified third country for the relevant period without being at real risk of serious and irreversible harm, they would meet the threshold for a serious harm suspensive claim, in line with the principles set out by the Supreme Court in the case of HJ (Iran). With these assurances and the amendment in lieu, I hope that I have been able to address the concerns of the noble and learned Lord, Lord Etherton, and he would feel able to support Motion S.

In relation to Motions T and U, we remain firmly of the view that it is right to place limitations on judicial review challenges to removal. We are not preventing such challenges but saying that they should not suspend removal. The Bill includes bespoke provisions for removal condition suspensive claims and serious harm suspensive claims, which themselves afford appropriate opportunities for a person to challenge their removal before it takes place. Given these remedies, it is entirely appropriate that other legal challenges should be non-suspensive.

Finally, in relation to Motion V, I again reassure the noble and learned Lord, Lord Hope, that the Bill, in enabling a court to overturn an age assessment decision on the basis that it is wrong in law, already covers challenges based on Wednesbury unreasonableness. It therefore follows that Lords Amendment 95 is not needed.

The House of Commons has disagreed with Lords Amendments 1, 73, 90, 93 and 95 by strong majorities in each case. It has proposed Amendment 74A in lieu of Lords Amendments 73 and 74, which addresses one of the key concerns of the noble and learned Lord, Lord Etherton. I therefore invite the House to agree the government Motions in this group. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

[Baroness Chakrabarti]

At end insert “, and do propose Amendment 1B in lieu—

1B: Leave out Clause 1 and insert the following new clause—
“Introduction
In interpreting this Act, regard shall be given to the intention that its provisions, and any acts and omissions made as a result, are intended to comply with the United Kingdom’s obligations under-
(a) the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms;
(b) the 1951 UN Convention relating to the Status of Refugees including the Protocol to that Convention;
(c) the 1954 and 1961 UN Conventions on the Reduction of Statelessness;
(d) the 1989 UN Convention on the Rights of the Child;
(e) the 2005 Council of Europe Convention on Action against Trafficking Human Beings.””

[Baroness Chakrabarti (Lab)]

My Lords, I beg to move Motion A1 as an amendment to Motion A. Ministers suggest that our Amendment 1, Amendment 7 as a consequential and Amendment 90 are wrecking and unnecessary. These criticisms are contradictory. If the Government take their international obligations so seriously, why should they be afraid to ensure that those charged with operating this proposed legislation, which clearly impacts on the rights of vulnerable people, understand that Ministers intend not to violate these rights? Why should Ministers have been unable to make a statement of their belief in ECHR compatibility in the Bill?

Alongside that strange logic comes a pseudo-legal argument from the Mickey Mouse school of jurisprudence that even to reference binding international obligations in domestic instruments somehow offends the sanctity of our dualist system. This is nonsense. It is because of our system, whereby international obligations signed by Ministers do not automatically become directly enforceable domestically without parliamentary approval, that successive Governments of both stripes have had to refer to various treaties or their contents in a host of relevant domestic measures. Section 2 of the Asylum and Immigration Appeals Act 1993 expressly gave primacy to the refugee convention. In 2009, in the EN Serbia case, the Court of Appeal found that that provision did not constitute informal or backdoor incorporation or undermine the principle of dualism, which is designed to protect parliamentary sovereignty and not to insulate Governments from their obligations. The Children Act 1989 takes its central best interests of the child principle directly from the UN Convention on the Rights of the Child—two of numerous precedents.

The treaties in our Amendment 1 were chosen by truly cross-party, all-party and non-party consensus for relevance to the people, measures and rights engaged by this Bill. The Government’s real objection, and to consequential Amendment 7 and Amendment 90, is that no one, especially His Majesty’s judges, should be able to second-guess Home Office decisions. That is simply contrary to the rule of law on which any civilised society, let alone a great democracy, must be built. None the less, in the spirit of respectful dialogue, we have listened, compromised and amended our new Clause 1, softening its requirement to require having regard to the various conventions when interpreting the Bill. There is no way that that can now be regarded as incorporation rather than interpretation.

Further, the consequential Amendment 7 is reformulated so that the Section 2 duty to remove a person will stand, notwithstanding an application for judicial review, if a court refuses permission, or even just refuses to make an interim injunction. To respond further to concerns from the other place and the Benches opposite about so-called protracted legal knots, interim relief preventing a removal is to be granted under our new version of Amendments 90 only after the Secretary of State has had a reasonable opportunity to tell a court why this should not happen. Far from being wrecking amendments, these are wholly reasonable compromises to restore some semblance of legality and respect for international obligations, domestic judges and the rule of law. I beg to move.

20:15

[Baroness Jones of Moulsecoomb (GP)]

My Lords, there are three reasons we should be stubborn about not allowing the Bill to go through. The first is that this was not in the Tory Party manifesto: we do not have a duty to pass it. Secondly, Rwanda is not a safe country. Thirdly, we cannot pass legislation that allows the Government to break the law; that does not make sense.

[Lord Etherton (CB)]

My Lords, I support the amended version of Clause 1, put forward by the noble Baroness, Lady Chakrabarti. Whether or not Parliament intends to incorporate international treaties within our own law depends on the wording. The point was made on Report that the noble Baroness’s previous wording had no reference to interpretation. It seems to me quite clear now that the emphasis has been put on having regard to the provisions in these international treaties which bind this country for the purposes of interpreting this Act. I consider that this falls plainly on the right side of the line.

As for my own amendment to Motion S, which the noble Lord, Lord Murray, has addressed, I thank the Minister for his time, patience and reasonableness over the discussions concerning this. I was principally concerned that those who are entitled to the protection of the convention because of a well-founded fear of persecution in the country stated in the removal notice should not have to have an additional test of irreversible harm in order to prevent removal there. The assurances the noble Lord has given have satisfied me over that concern, particularly in relation to the principles in the case to which he drew attention, HJ (Iran) for LGBT refugees. My concerns have been satisfied and for that reason I will not oppose the Motion of the Government on this point.

[Baroness Ludford (LD)]

My Lords, briefly, we on these Benches support all the Motions to amend the government Motions. The noble Baroness, Lady Chakrabarti, has well made the point that even if one could have argued that the original Amendment 1 was a backdoor incorporation—an argument I always found unpersuasive—that objection certainly cannot be made of the new text of Motion A1, which is clearly nothing of the sort. The Prime Minister has been at the NATO summit in Vilnius upholding international law against breaches through Russian aggression. Indeed, the North Atlantic Treaty of 1949 cited the rule of law at one of the core principles. The Prime Minister was also recently at the Council of Europe summit. Again, the core values in the declaration were the threats to human rights, democracy and the rule of law.

On Report, the noble Baroness, Lady Helic, talked about how this amendment

“is firmly in the Conservative tradition of strengthening, not undermining, the international rule of law”.—[Official Report, 28/6/23; col. 704.]

She reminded noble Lords that

“Conservative Governments were instrumental in creating the first four conventions listed in the amendment”.

Finally, on Amendment 93, we still have concerns, as do doctors, about the proposals in the Bill for as yet unproven medical age assessments. Amendment 93 provides the most basic safety net for those undergoing age assessment: the right to appeal a judgment. Removing that right will not deter any smugglers, or child refugees in need of appropriate safety and protection. We urge support for the amendment Motions.

[The Lord Bishop of Manchester]

My Lords, I support Motion A1 but will speak more particularly to Motion U1 in my name, to which the noble Baroness just referred. It proposes that if an age-assessment judicial review is in progress, removal should be delayed until its completion. I welcome comments from Ministers that those subject to an age dispute will be accommodated in an age-appropriate setting here in the UK, but can the Minister confirm that will be the case in a third country? Will Rwanda, for example, be informed that a young person is subject to an age dispute, and will the Rwandan Government then be required by the UK to keep that person separate from other adult residents and to supervise them properly as a child until the courts have made a judgment?

The Secretary of State has a legal duty to have regard to the need to safeguard and promote the welfare of children. Can the Minister therefore say how the welfare of a child will be protected by not allowing judicial review to act as a temporary delay to their removal? The Government appear to be arguing that when a child legally challenges an age assessment, it is simply a spurious attempt to use legal methods to postpone removal. However, as we know, the majority of children are found to be children after local authority assessments, so it is more likely that what is happening is an attempt to protect their proper right to be treated as a child. Can the Minister therefore take the opportunity at least to confirm that when an individual’s age is disputed, they will not be subject to removal before having met with a social worker and a child protection team for a more comprehensive age-assessment process?

The determination that an individual may be a child and therefore could deserve all the rights a child is due should and must be reason enough to prevent their removal. When the implications for children are so grave and lifelong, it seems that to not delay a child’s removal from the UK until those questions are resolved is immoral. I plead with the Government to recognise this as a failure of safeguarding, which we are all trying to treat at the highest possible standard. However, in view of the lateness of the hour when we are likely to reach a vote on this matter, and the many other matters your Lordships’ House has to deal with tonight, I am not minded at present to press this Motion to a Division.

[Lord Wolfson of Tredegar (Con)]

My Lords, I do not know whether I should declare an interest as a pseudo-lawyer, or perhaps as Mickey Mouse. I am not entirely convinced that framing the debate in that way is appropriate.

I have a number of things to say. First, the fact that Motion A1, in the name of the noble Baroness, Lady Chakrabarti, has been rephrased as it has been, shows that those of us who argued that the previous version was substantive, and not interpretative, were right. However, the Motion as redrafted is also improper because it does two things—here I again respectfully part company with the noble and learned Lord, Lord Etherton. He read the Motion but omitted words in its second line. Let us have a look at what it actually says:

“In interpreting this Act, regard shall be given to the intention that its provisions”—


that refers to the provisions in the Bill—

“and any act and omissions made as a result, are intended to comply”.

Even now, it is not properly an interpretative provision, because it does not just apply to interpreting the words; it is also said to apply to any acts and omissions made under the Act, as it will become. That still has substantive consequences, and the effect is still—this time in an evening rather than in an afternoon—that we are effectively incorporating these treaties into our domestic law.

That is why the words

“and any acts and omissions made as a result”

are still objectionable, but the rest of it, while maybe not objectionable, is unnecessary. As I mentioned on Report, the law of this country has always been that, in the absence of express words to the contrary, all statutes are presumed to be in accordance with our international obligations. That was most recently set out by Lord Dyson, speaking for the Supreme Court in the Assange case, when he said that

“there is no doubt that there is a ‘strong presumption’ in favour of interpreting an English statute in a way which does not place the United Kingdom in breach of its international obligations”.

The fact that we now have to go through the contortions of trying to fit this reformulated amendment into interpretation when it still has substantive consequences shows that this is a road down which we should not be going at all. In so far as the intention is that legislation should be interpreted in line with our international commitments, that is already part of the law. In so far as it says that

“any acts and omissions made as a result”

of this Bill are to be so interpreted, that has substantive consequences.

I respectfully suggest that those points are not those of a pseudo-lawyer, nor are they Mickey Mouse points. If I may finish where I began, it is somewhat unfortunate that that is how they are being described.

[Lord Hope of Craighead (CB)]

My Lords, I have the misfortune to disagree with the noble Lord, Lord Wolfson. I support entirely what the noble and learned Lord, Lord Etherton, said. The key words in this reformulated amendment are “In interpreting this Act” and “regard”. It would not write these conventions into our law, as the previous amendment was in danger of doing. This a pure interpretation provision, and it is entirely consistent with the way the courts approach these various conventions. The assumption is that the United Kingdom, having signed up to the conventions, will respect them in the formulation of its provisions in our domestic law. The court applies that principle in finding a meaning of the words before it in statutory instruments and in primary legislation. This is entirely in accordance with the way the courts approach the matter. The key words are, “In interpreting this Act”, and “regard”. It is not binding; it is just that regard will be had. That is the way the provision should read. I support the amendment because it is entirely orthodox and consistent with principle.

[Lord Coaker (Lab)]

My Lords, I support my noble friend Lady Chakrabarti’s Motion A1 and the various provisions that follow from it. Without getting into the legal arguments that have just been articulated by the noble and learned Lords, Lord Hope and Lord Etherton, I support the fact that the key words are the first few words, in particular to try to deal with the criticism that was made of the previous amendment.

The only point I would add is that it is important for us to have something like this in the Bill given the criticism, concern and questions that have been raised about the Bill by many well-respected international organisations, bodies and individuals. We all expect something to be done about the challenge that we face, but we want it done in a way which enhances our international reputation and conforms to the various international treaties and our responsibilities. That is why Motion A1 is particularly important and should be supported.

[Lord Murray of Blidworth (Con)]

My Lords, I thank the House for the dispatch this group has been dealt with and for the contributions from across the Chamber. It will come as no surprise to the noble Baroness, Lady Chakrabarti, that I disagree with her interpretation and agree with that of my noble friend Lord Wolfson. Frankly, if one looks at Amendment 1B, one can see that “regard” must be read alongside “intended to comply”, so this revised amendment is equally problematic. The point my noble friend Lord Wolfson made is entirely right: it amounts to an acceptance that the earlier version of the amendment would also have been a very significant constitutional innovation, predicated on the back of an amendment to the Bill and a massive change to our constitutional framework. I am afraid that I therefore disagree with the noble Baroness and the noble and learned Lord, Lord Hope, on Amendment 1B.

20:30

On the point made by the noble Baroness, Lady Jones, the Bill of course sets up a framework whereby a person can be removed to a safe country. In the litigation in the Court of Appeal, as this House well knows, the court unanimously found for the Government: that it is lawful and within the meaning of the refugee convention for a country to allow processing by a third safe country. Clearly, that is what the Bill provides for.

I am very grateful for the kind remarks by the noble and learned Lord, Lord Etherton, and I am glad that we were able to reach the accommodation that he identified. On the comments from the noble Baroness, Lady Ludford, if a person objects to an age assessment, it is clearly open to them to challenge it by judicial review, but that will not be suspensive. On the points made by the right reverend Prelate the Bishop of Manchester, the duty to remove does not apply to unaccompanied minors—there is a power to remove in Clause 3 of the Bill—and if a child is to be removed in exceptional circumstance, it is open to that child and his or her representatives to make a suspensive claim.

As I have said in this House many times, the purpose of these provisions is to prevent people smugglers encouraging fraudulent claims to be children. On the question raised by the right reverend Prelate as to whether Rwanda will provide appropriate care for the children, this matter was extensively canvassed during the Rwanda litigation, and the court was satisfied that sufficient arrangements had been made in the memorandum of understanding. I invite noble Lords to refer to the judgment in that regard. I am very grateful to the right reverend Prelate for his indication that he will not press that amendment to a Division.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all noble Lords, particularly to the noble and learned Lords who gave their ruling on the backdoor incorporation point. Of course, Section 2 of the 1993 Act was much stouter than either version of our Amendment 1.

Dr King, not a judge but a man of God, famously said:

“It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that’s pretty important”.


Across this House yesterday, we pleaded for kindness. Today, we come with a more modest plea: for the rule of law. I have moved the Motion and ask the House to approve it.

20:32

Division 2

Ayes: 217

---

Labour: 109
Liberal Democrat: 61
Crossbench: 33
Independent: 7
Bishops: 3
Green Party: 2
Conservative: 1
Plaid Cymru: 1

Noes: 151

---

Conservative: 144
Independent: 3
Crossbench: 3
Labour: 1

20:45

Motion B

Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendments 2, 12, 20 and 22 and do agree with the Commons in their Amendments 22A to 22Q in lieu.

22A: Clause 2, page 3, line 26, leave out “7 March 2023” and insert “the day on which this Act is passed”

22B: Page 4, line 21, at end insert the following new Clause—
“Amendment of date in section 2(3) etc
(1) The Secretary of State may by regulations amend the date which is for the time being specified in—
(a) section 2(3) (duty to remove: date of entry or arrival in the United Kingdom);
(b) section 4(7)(a) (application to claims made on or after passing of this Act);
(c) section 5(12)(a) or (14)(a) (application to claims made on or after passing of this Act).
(2) Regulations under subsection (1) may make consequential amendments to this Act or any other enactment.
(3) Provision made by virtue of subsection (2) may, in particular, amend this Act or any other enactment to modify the operation of a provision which would otherwise apply to a person who meets, or has ever met, the condition in section 2(3) (including to enable that provision to operate as if an amendment to section 2(3) had not been made).
(4) An amendment made by virtue of subsection (1) may have the effect that a provision mentioned in that subsection specifies—
(a) a particular calendar date, or
(b) a date which is determined by the occurrence of a particular event (for example the coming into force of a provision of this Act, generally or for a particular purpose).
(5) But such an amendment may not have the effect that the provision specifies a date which is earlier than the date specified before the amendment was made.”

22C: Clause 3, page 5, line 7, after “this Act” insert “(other than sections 15 and 16)”

22D: Clause 4, page 6, line 32, leave out “7 March 2023” and insert “the day on which this Act is passed”

22E: Clause 5, page 8, line 18, leave out “7 March 2023” and insert “the day on which this Act is passed”

22F: Clause 5, page 8, line 30, leave out “7 March 2023” and insert “the day on which this Act is passed”

22G: Clause 15, page 23, line 19, at end insert—
“(5) For the purposes of this section and section 16, a person (“C”) is an unaccompanied child if—
(a) C meets the four conditions in section 2, reading subsection (3) of that section as if it referred to a person entering or arriving in the United Kingdom as mentioned in subsection (2) of that section on or after 7 March 2023,
(b) C is under the age of 18, and
(c) at the time of C’s entry or arrival in the United Kingdom by virtue of which C meets the condition in section 2(3), no individual (whether or not a parent of C) who was aged 18 or over had care of C.”

22H: Clause 20, page 25, line 27, after “meaning of” insert “section 15 of”

22J: Clause 20, page 25, line 28, leave out “(see section 3(5) of that Act)”

22K: Clause 29, page 35, line 8, after “Kingdom)” insert “, reading subsection (3) of that section as if it referred to a person entering or arriving in the United Kingdom as mentioned in subsection (2) of that section on or after 7 March 2023”

22L: Clause 29, page 35, line 14, after “Kingdom)” insert “, reading subsection (3) of that section as if it referred to a person entering or arriving in the United Kingdom as mentioned in subsection (2) of that section on or after 7 March 2023”

22M: Clause 29, page 36, line 17, at end insert—
“(4) Until section 2(1) comes into force in relation to a person, section 8AA of the Immigration Act 1971 has effect in relation to that person as if it also permitted the Secretary of State to give the person limited leave to enter or limited leave to remain in the United Kingdom in any other circumstances, subject as follows.
(5) If a person in relation to whom section 8AA of the Immigration Act 1971 applies leaves or is removed from the United Kingdom after having become such a person, subsection (4) of this section does not permit the Secretary of State to give the person limited leave to enter the United Kingdom if the person returns to the United Kingdom (but see section 8AA(3) of that Act).
(6) If a person in relation to whom section 8AA of the Immigration Act 1971 applies is given limited leave to enter the United Kingdom under subsection (3) of that section, subsection (4) of this section does not permit the Secretary of State to give the person limited leave to remain in the United Kingdom (but see section 8AA(4) of that Act).
(7) Any leave to enter or remain in the United Kingdom given to a person by virtue of subsection (4) is to be disregarded in determining, for the purposes of this Act or any other enactment, whether the person meets the four conditions in section 2.”

22N: Clause 30, page 36, line 26, after “Kingdom)” insert “, reading subsection (3) of that section as if it referred to a person entering or arriving in the United Kingdom as mentioned in subsection (2) of that section on or after 7 March 2023”

22P: Clause 64, page 64, line 22, after “3(5)” insert “(subject to section 15(5))”.

22Q: Clause 66, page 65, line 41, at end insert—
“(za) section (Amendment of date in section 2(3) etc) (amendment of date in section 2(3) etc);”

[Lord Murray of Blidworth (Con)]

My Lords, with the leave of the House, I will speak also to Motions F and G.

Motion B deals with the retrospective application of the duty to make arrangements for removal. We have reflected on the arguments put forward on this issue by the noble Lord, Lord Carlile, on Report. We have brought forward Amendments 22A and 22Q in lieu. Noble Lords will recall that the Lords amendments sought to move the operative date of the Clause 2 duty from 7 March this year to the date of that clause’s commencement. We believe that such a change carries a significant risk of there being a surge in channel crossings—a fire sale, if you will—as we approach the commencement date. To guard against this, the amendments in lieu instead provide for the duty to remove to apply to a person who enters the United Kingdom unlawfully from the date of this Bill’s Royal Assent.

We will keep this under review ahead of the Bill’s implementation, as we have included a reserve power to change the new operative date by regulations. This could, for example, enable us to focus the initial implementation of the Bill on those who arrived here illegally via small boats rather than by other means. I should stress that the 7 March date will continue to apply for the purpose of the power conferred on the Secretary of State to provide accommodation for unaccompanied children and for the purpose of the ban on re-entry, settlement and citizenship. I trust that this compromise approach will meet with the approval of the noble Lord, Lord Carlile.

Motion F relates to Lords Amendment 9, moved on Report by the noble Lord, Lord German. This relates to the issue of the inadmissibility of asylum and human rights claims within the UK system. It remains the Government’s contention that declaring such claims to be admissible is a core part of the scheme provided for in the Bill. The Court of Appeal unanimously confirmed that removing asylum seekers to a safe country for their asylum claims to be processed is entirely consistent with the refugee convention, including Article 31—a point that I mentioned a moment ago. This amendment would simply encourage people to game the system, drawing things out in an attempt to reach a six-month cut-off date. This amendment was rejected by the Commons by a strong majority of 76. Given that, I hope that the noble Lord, Lord German, will be content to agree to Motion F.

Finally, Motion G relates to Lords Amendment 23, put forward by the noble and learned Lord, Lord Etherton. The United Kingdom is a stout defender of LGBT communities across the globe. Our commitment to this cause remains unwavering. So, although I understand and sympathise with the noble and learned Lord’s desire to protect LGBT people who would face persecution were they to be sent to one of the countries listed in the amendment, I remain strongly of the view that the amendment is unnecessary as the Bill already delivers the protections that he seeks.

We are committed to the principle of non-refoulement, as a Jamaican national who makes a protection claim will not be returned to Jamaica. Were they to be fearful of being at real risk of suffering serious and irreversible harm, and were they to be removed to a specified third country, they would be able to make a serious harm suspensive claim. As I have previously indicated, in considering such a claim, the principles enunciated by the Supreme Court in the case of HJ (Iran) would be applied such that if the open expression of a person’s sexual orientation would prevent them from living in the specified third country without being at real risk of serious and irreversible harm, they would meet the threshold for a serious harm suspensive claim.

I hope the noble and learned Lord has been able to reflect on my assurances and on the outcome of the vote yesterday in the other place, and that he now feels able to support Motion G. I beg to move.

Motion B1 (as an amendment to Motion B)

[Lord Carlile of Berriew]

Moved by

At end insert “, and do propose Amendment 22R as an amendment to Amendment 22B—

22R: After subsection (1) insert—“(1A) Regulations under subsection (1) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.””

[Lord Carlile of Berriew (CB)]

My Lords, I hope I will be allowed a moment when referring to my Motion B1 and Amendment 22R on page 5 of the Marshalled List to pay a very short tribute to the staff of the Public Bill Office. I was treated very kindly by a very tolerant member of staff there when I was being completely dysfunctional late last night and early this morning. They have been put under enormous pressure, and I think we should appreciate that. It may have felt to them like bullying, I am afraid.

I do not know why we have been forced to consider these amendments today, or indeed before the Summer Recess. The very earliest this Bill could ever be used would be after the Supreme Court decision in October, or whenever that is given; we do not know the exact date. Indeed, that may not be the end of the litigation in any event. I do not understand why we were not left to consider this in the sittings in September. I hope we will not be put in this position again.

I now turn to my Motion. This is where I express my genuine gratitude to the Government—to the Minister and others, including the Chief Whip—because they have made, in my view, a correct and noble concession to the objections that this House voted for in an amendment I moved on retrospectivity, pointing out as I did at the time that retrospectivity, though not a “never”, is frowned on in our law.

My Motion on page 5 of the Marshalled List—which I will not test the opinion of the House on tonight—mitigates the rigour of the exception that has been created in the Government’s amendments. They say they have abandoned retrospectivity, to put it crudely, but they have retained a regulatory power to abandon retrospectivity. I am not going to force the issue tonight, but I ask the Government to reflect on the constitutionality of that approach, because it makes me feel decidedly uncomfortable. I do not want to dilute my thanks for the acceptance in principle of what I moved a few days ago.

[Lord German (LD)]

My Lords, I draw attention to my interests as laid out in the register. These Benches are supportive of the discomfiture, which the noble Lord, Lord Carlile of Berriew, just referred to, to find that eventual clarification. We also support Motion G1 in this group.

My Motion F1 would mean that if an individual has been made inadmissible under this legislation and has not been removed to a safe country after six months, their claim will be processed within the UK system. The Ministers in both Chambers, in response to my amendment at an earlier stage, said—it has been repeated here—that people might game the system or that it would incentivise people to make spurious claims so as to extend their time in the United Kingdom in order to reach the magic six months.

In response to this concern, the current form of Motion F1 would pause the calculation of six months during any suspensive claim as set out in the Bill. It is also important to be mindful that the Bill in itself is claimed by Ministers to prevent people from making last-minute legal challenges to stop removals. My Motion totally disincentivises people from making spurious claims.

The Minister in the other place said that my earlier amendment would undermine the Bill. It does not. It would simply provide a backstop that protects the taxpayers of this country from indefinitely supporting people existing in the UK in limbo.

The Government’s own impact assessment on the Bill assumes that people will be detained for 40 days before removal. In this Chamber, we have heard constantly from the Minister that it will be not months but weeks or days when people are removed. On that basis, the ability to make a claim after six months should not be a problem, because it is totally in line with the Government’s expectations of their very own Bill.

Without this amendment, the Home Secretary is setting herself up for an extremely challenging time. There will be no way of resolving the foreseeable challenge of not having anywhere to remove people who arrive in the United Kingdom on irregular routes. Whether that is resolved in the future, the Government express the desire that they will be able to make this happen. If you believe, in the Government’s own words, that the Bill can be “workable”, then it is entirely financially prudent for us in this Chamber to try and insist that, in the current climate, the Government should be prudent with their spending of the public purse in using taxpayers’ money to support people indefinitely and without a returns agreement—because six months will have passed.

In addition to the financial considerations, it does not seem to me to be particularly in line with a Conservative mindset to enforce that people remain in the United Kingdom without being able to contribute, use their skills or participate in society. If these people cannot be removed after a reasonable amount of time, their claim should be processed, so that they either get on with their lives in the United Kingdom or be removed to their country of origin.

[Lord Etherton (CB)]

My Lords, I draw attention to Motion G and my Amendment 23B in lieu. I thank the noble Lord, Lord Cashman, in particular, who has been a stalwart supporter of me in relation to this clause from the very beginning.

The clause identifies countries currently specified in Schedule 1 which, the evidence and the law show—by virtue of decisions made by UK courts—are not safe places. I explained to the House on Report what the evidence briefly was in relation to each of them. The House and I have not received any refutation of the point that I made—that all these countries are unsafe places for LGBT people. The only answer that is given by the Government and repeated by the Minister is that this will all come out in the wash when a removal notice is served, and a serious harm suspensive claim can be made.

I am afraid that simply is not good enough. The Bill contains a schedule: Schedule 1. Schedule 1 identifies itself as listing places to which persons can be removed. Schedule 1 is related back to the provisions of Clauses 5 and 4, which provide that people can be moved only to those countries in Schedule 1.

If the approach of the Minister were correct, we would not have a schedule at all. But we have a schedule, and it rightly makes a distinction between those countries which are safe—so it says—and those which are not. There is also a division between those which are safe for women and those which are not. I have put forward the amendment for another group of disadvantaged people, who, as the Minister referred to, are long recognised in our own law: LGBT people.

21:00

We should not provide a veneer of respectability for these countries; rather, we should point them out as countries which are intolerant and persecutors of a particular community. The answer that the Minister gave—that it does not matter and that it will all come out in the wash—is not good enough when there is a schedule which specifies, as it does, which countries are said to be safe.

The next point in the amendment in lieu is not limited to LGBT people; it concerns countries such as Hungary and Poland, where the EU Parliament has already proposed that proceedings be taken under Article 7 of the Treaty on European Union. As Members of the House will be aware, those proceedings take place where there is a serious risk of infringement of Article 2, which upholds the standards of freedom, dignity and human rights. In those circumstances, we say that those are not countries to which anyone should be sent. That derives support from the fact that elsewhere in the Bill—noble Lords will see the cross-reference—where there is a question of returning people to EU countries, the so-called Section 80AA countries, one of the grounds on which a protection claim is admissible is precisely the one I have mentioned: where there is a proposal to commence proceedings under Article 7 of the TEU. There is absolutely no reason why any difference should be made in relation to removals by people who come to this country as refugees.

Finally, I draw attention to the fact that my amendment in lieu provides that

“no person may be removed to Rwanda until the conclusion of all litigation concerning the lawfulness of arrangements for removal to that country”.

Why is that important? That is important because we do not want to reach a situation with a constitutional debate about whether the approval of Schedule 1, with Rwanda in it, means that the Government can say that, whatever the courts decide, Parliament, having legislative sovereignty under our constitution, has determined that it is a safe place, and so that country must be identified as one which is unsafe, unless and until some litigation is found—if it is ever found—in favour of the Government in relation to Rwanda, and that may never happen. On that basis, I will seek to press my amendment.

[Lord Cashman (Lab)]

My Lords, I will speak very briefly to the amendment in lieu, in Motion G1, in the name of the noble and learned Lord, Lord Etherton. Taking what the Government have said at face value on their protections of LGBT people, I ask them to accept the amendment, because it reinforces the principle of the protection of LGBT people and others.

On reflection, I point out that, of the 58 countries that currently criminalise homosexuality—and they are on the increase, as we have seen with Uganda—over 50% are in the Commonwealth. They are countries with which we are more than likely to reach safe third country agreements. Furthermore, 11 countries currently have the death penalty, and there is further agitation for the increase of that across other states. I therefore argue that the amendment is proportionate and necessary.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I congratulate the noble Lord, Lord Carlile, on getting a concession from the Government and understand the point he made with his Motion, which I understand he will not move. I am pleased that it has been accommodated.

The noble Lord, Lord German, explained his amendment extremely well; it provides a backstop for the taxpayer to stop people going into legal limbo, being a burden on the taxpayer indefinitely and getting into the grey area which so many in this situation are in right now. As he said, it is totally in line with the Government’s expectations of the Bill, so if the noble Lord chooses to press his Motion F1 then we will support it.

My noble friend Lord Cashman summed up the support for Motion G1, in the name of the noble and learned Lord, Lord Etherton. If he chooses to move it, we will support him. As my noble friend said, it reinforces the principle of protection for LGBT people. In the words of the noble and learned Lord, Schedule 1 should not provide a veneer of respectability to certain countries that are currently on it, so we would support him.

[Lord Carlile of Berriew (CB)]

My Lords, as I indicated earlier, I ask the Government to consider leaving to Parliament the final decision on any regulations reintroducing retrospectivity. That said, for the reasons I gave earlier, I beg leave to withdraw Motion B1.

Motion B1 withdrawn.

Motion B agreed.

Motion C

[Lord Murray of Blidworth]

Moved by

That this House do not insist on its Amendments 6, 51, 52, 53, 54, 55, 58, 59, 60, 61, 62, 63, 64 and 65, to which the Commons have disagreed for their Reason 65A.

65A: Because it is necessary on grounds of public order to disapply protections for potential victims of modern slavery temporarily in response to the current scale of illegal migration.

[Lord Murray of Blidworth (Con)]

My Lords, I will speak also to Motions H, P and Q. It remains the Government’s view that there are clear opportunities to misuse our modern slavery protections. The amendments agreed by your Lordships’ House on Report would severely undermine and in some cases prevent the Government from being able to prevent potential misuse and effectively tackle the crisis of illegal entry.

As I have repeatedly made clear, the scheme provided for in the Bill will succeed in preventing and deterring illegal migration into the UK only if we can swiftly remove illegal entrants either to their home country or to a safe third country. Having to wait more than 500 days for a conclusive grounds decision is not swift by any stretch of the imagination.

While it remains the case that the Government cannot support any of the amendments to which these Motions relate, I recognise the concerns raised by my noble friend Lord Randall and others about the impact of the Bill on those who are exploited in the United Kingdom. It is worth reminding this House that these provisions will not affect potential victims of modern slavery referred into the national referral mechanism who are British nationals and nor will they impact unaccompanied children under the age of 18 or those who lawfully entered the UK and subsequently overstayed. Additionally, changes to the Bill agreed in the other place mean that the retrospective application of the duty to remove will be applicable only from Royal Assent, removing a significant cohort from the reach of these time-limited provisions.

Furthermore, this change reduces the likelihood of individuals in this cohort being exploited in the UK, given that they are more likely to be in detention rather than out in the community. None the less, the Government recognise the importance of enabling potential victims of modern slavery to co-operate with law enforcement to ensure successful prosecutions.

We are committed to stamping out human trafficking and to bringing criminal gangs to justice, including those who commit offences in the United Kingdom. That is why, alongside our pre-existing exception, which allows victims to remain in the United Kingdom to co-operate with an investigation where necessary, we will provide in statutory guidance that an individual who has arrived in the UK illegally and has a positive reasonable grounds decision based on an incident that has taken place in the United Kingdom will be afforded 30 days from this positive decision to confirm that they will co-operate with an investigation in relation to their exploitation. They will not be removed within this period, which affords them protection equivalent with those set out in ECAT. Should they continue to co-operate with such an investigation, they will continue to be entitled to the support and protections of the NRM. Given this, I do not see the need for my noble friend’s Amendment 56, or for the amendment of the noble Lord, Lord Carlile, Amendment 57.

I hope I have been able to reassure my noble friend Lord Randall and other noble Lords as to how these provisions will apply and operate. We expect that relatively few of those subject to the duty in Clause 2 will be potential victims of modern slavery whose exploitation took place in the UK, and for those potential victims, our statutory guidance will make it clear that they can continue to access support where they are co-operating with an investigation.

On this basis, and in view of the votes in the other place to disagree with Amendments 6 and 56, I invite the House to agree the government Motions. I beg to move.

Motion C1 (as an amendment to Motion C)

Moved by

[Lord Hunt of Kings Heath]

Leave out from “House” to end and insert “do insist on its Amendments 6, 51, 52, 53, 54, 55, 58, 59, 60, 61, 62, 63, 64 and 65, to which the Commons have disagreed for their Reason 65A”

[Lord Hunt of Kings Heath (Lab)]

My Lords, I beg to move Motion C1, as an amendment to Motion C. I shall not repeat the extensive arguments we had both in Committee and on Report, save to say that this concerns modern slavery, which is a brutal crime that involves sophisticated criminal networks buying and selling people for profit.

I listened very carefully to what the Minister said this evening, but the fact is that if the Bill is left unamended, it completely undermines the Modern Slavery Act, and we will see victims of crime punished for crimes committed by the perpetrators, deported or held in detention centres, exacerbating the pre-existing trauma that so many of them face. Once again, the Minister implies that his own modern slavery national referral mechanism process provides opportunities to misuse the modern slavery protections, despite the evidence, to which he has never responded, that 90% of competent authorities’ decisions were positive last year—in other words, there were reasonable grounds that someone was a victim of modern slavery. Where are the failings there with the NRM system, which his own officials oversee and administer?

The Minister did not repeat the claim tonight that the national referral mechanism rate for people arriving in the UK on small boats and being detained for return has risen from 6% in 2019 to 73% in 2021. That was a claim which he has made both in Committee and on Report and which his colleague, the Minister in the Commons, made in the other place. But last night, Mrs Theresa May pointed out that the figures that Ministers cite of that increase from 6% to 73% are simply not right in respect of modern slavery. They are actually talking about people who are subsequently detained for removal. As Mrs May asked, will the Government confirm that the average percentage of people coming on small boats and claiming modern slavery has not changed over the last three years and is around 7%?

I have of course listened to the Government’s concession on retrospection, although I noted the intervention from the noble Lord, Lord Carlile, which really qualifies the concession which has been made.

21:15

Further, I do not believe that bringing forward statutory guidance on how law enforcement authorities interact with victims of modern slavery is enough. There are other Motions in this group, and I will listen very carefully to what my noble friend Lord Coaker says in relation to them.

I refer the House to something else that Mrs May said, which was

“this Bill is not just written to stop the boats; it covers all illegal migration and its unwritten subtext is”—[Official Report, Commons, 11/7/23; col. 218.]

about stopping all claims full stop. We should think very carefully before we allow the Government to dismember their own Modern Slavery Act, which was passed to international acclaim. I beg to move.

[Lord Randall of Uxbridge (Con)]

My Lords, I shall speak briefly to my Motion P, to which the Minister referred. I should refer to my interest as a deputy chairman of the Human Trafficking Foundation. Perhaps it should be called not the Human Trafficking Foundation but the “modern slavery foundation”, because there is a difference with human trafficking, which is what I think stop the boats is all about. By dint of modern slavery, everybody who is enslaved and arrives in this country has come in illegally. Nobody comes in legally for modern slavery.

I am very disappointed with this Bill. However, I am a pragmatist. Years in retail taught me that sometimes you cannot have everything you want. So when my right honourable friend Theresa May spoke so eloquently and voted against the Government—and I can say as a former Deputy Chief Whip that that was only the second time she has ever voted against the Conservative Whip, which tells you something; you could not wish for a more loyal person—she did so because, as the noble Lord, Lord Hunt of Kings Heath, just said, it is not a great Bill in respect of modern slavery.

However, my noble friend and my right honourable friend down the other end in the other place made some concessions about what they would put in the guidance. My Motion basically asks that those concessions, that guidance, be put in the Bill. I would have preferred my original words—I would have preferred all sorts of things—but in order to make sure that we can get something done for the victims of this horrendous, heinous crime, if the Minister does not have a damascene conversion, when the time comes, I will test the opinion of the House.

[Baroness Hamwee (LD)]

My Lords, from these Benches, I cannot express strongly enough our huge disappointment about what is happening with the Modern Slavery Act. I very much agree with everything that the noble Lord, Lord Hunt, said. The Minister talked about “opportunities to misuse”, when it is the Home Office which approves the first responders who have to get possible victims of slavery into the NRM in the first place. He talked about enabling co-operation but, with what most of the people in this situation will have gone through, 30 days is simply insufficient for them to be able to bring themselves to co-operate with an authority figure in a foreign country when they are still worried about what their trafficker might do when he finds them and about what they will do if they have to try to get away from the system. It is simply not enough.

To co-operate requires support. That, in turn, requires trust, and that, in turn, requires time. Statutory guidance will of course be welcome. But only today I and other noble Lords received a briefing from the Rights Lab at the University of Nottingham on government commitments relating to Part 5 of the 2022 Act—the modern slavery part—analysing whether they had been met, partially met or not met at all. It did not make for very happy reading. It is a shame that one has to say that. We support the amendment of the noble Lord, Lord Randall. We wish that there were more coming before the House tonight that we could support too.

[Lord Coaker (Lab)]

My Lords, I thank my noble friend Lord Hunt for moving his amendments in a concise and informed way and for putting before the House the importance of the Modern Slavery Act and defending its principles.

I draw attention to Motion P1, moved by the noble Lord, Lord Randall, which is particularly important as it seeks to protect victims of modern slavery exploited in the UK. Although the Minister pointed to the protection the Government may give to British citizens, some of the exploited people the noble Lord, Lord Randall, referred to would not be British citizens and would therefore be out of scope.

It is worth spending a minute considering that we as a Parliament are here tonight reflecting on what was one of the finest achievements of the last Conservative Government and one of the proudest achievements of a former Conservative Prime Minister. I stand here as a proud Labour politician saying that. It was one of the reasons why our country was regarded as a world leader by countries across the world, and it was brought about by the actions of a Conservative Government.

When you read the speeches of not only a former leader, Iain Duncan Smith MP, but a former Prime Minister, it is no wonder that the latter is incredulous that her own party and Government would seek, as she says, to undermine completely an Act of which everyone was proud, including most Conservatives. I find it astonishing that the Government Front Benches of this House and the other place should simply sweep her views aside, almost as though they are the rantings of a failed person who is no longer relevant. She deserves greater respect than that, and to be recognised for what she achieved. I think I am right in saying that it was the first such legislation in the world. It was blown away not by a vindictive Labour Government but by her own Conservative Government, who have somehow just brushed it aside.

The noble Lord, Lord Randall, does us a huge service in bringing forward an amendment that I hope has the support of many of your Lordships, from all sides, and which tries to protect something of that achievement, that triumph, of a previous Conservative Government. In doing that, he gives us the opportunity to mark with great respect that achievement and work of a previous Conservative Government and Prime Minister.

I hope that the noble Lord will test the opinion of the House and that noble Lords will see fit to support the amendment in very large numbers, so that when it goes back to the other place they will think again about what they have done.

[Lord Murray of Blidworth (Con)]

My Lords, I thank the House for the dispatch with which the speeches on this group have been dealt with. To respond to the noble Lord, Lord Hunt of Kings Heath, on just one point, clearly, we do not agree and I am afraid that I cannot accept his amendment. On the statistic that he cited, I simply say that that statistic demonstrates the problem we face when we seek to remove people. Such statistics relate to people who were in detention and it was those in detention who, at a massively increased rate, sought to claim to be victims of modern slavery in order, I suggest to Members of this House, to defer their removal.

For that reason, I must stress to the House that the proposed amendment would blow a hole in this scheme, and I am afraid we cannot accept my noble friend Lord Randall’s amendment, as supported by the noble Baroness, Lady Hamwee. There are too many opportunities to misuse the provisions in the Modern Slavery Act, with allegations of modern slavery being made by those entering the country illegally. I entirely take on board what the noble Lord, Lord Coaker, has said about the triumph of the Modern Slavery Act, and I remind the House that it remains in force in relation to victims of modern slavery who are within Britain and are British citizens. These provisions are protected in Clause 21 by a sunset provision. These are emergency measures to deal with an emergency, and for those reasons I cannot accept the amendments.

[Lord Hunt of Kings Heath (Lab)]

My Lords, it is tempting to respond in detail to the Minister, but obviously I will not do it. What is so striking is how little confidence he has in the department he and his Ministers run to administer a system they have legislated for. It is deeply disappointing, but I beg leave to withdraw Motion C1.

Motion C1 withdrawn.

Motion C agreed.

Motion D

Moved by

[Lord Murray of Blidworth]

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

7A: Because, as the Bill provides for two classes of suspensive claims, with a right of appeal to the Upper Tribunal, it is appropriate that any application for judicial review does not suspend removal.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion D. I beg to move.

Motion D1 (as an amendment to Motion D)

Moved by

[Baroness Chakrabarti]

At end insert “, and do propose Amendment 7B in lieu—

7B: Clause 4, page 6, line 6, at end insert “if the court seized of the application refuses permission, interim relief or the application.””

[Baroness Chakrabarti (Lab)]

I beg to move.

[The Deputy Speaker (Lord Beith) (LD)]

The original Question was that Motion D be agreed to, since when Motion D1 has been moved as an amendment to Motion D. The Question therefore is that Motion D1 be agreed to. The matter will be decided by a Division.

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

My Lords, this is a consequential amendment and should just be moved formally by the House.

[The Deputy Speaker (Lord Beith) (LD)]

It is a matter for the House whether it is treated as a consequential amendment, and not one that I can rule on.

Motion D1 agreed.

21:30

Motion E

Moved by

[Lord Murray of Blidworth]

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

8A: Because unaccompanied children will be removed only in the limited circumstances set out in clause 3(3) or once they turn 18 and will be able to challenge their removal by making a serious harm suspensive claim.

Motion E1 (as an amendment to Motion E)

Moved by

[Lord Dubs]

At end insert, “and do propose Amendment 8B in lieu—

8B: Clause 4, page 6, line 9, after “subsection (5),” insert “at a time when the person is not an unaccompanied child,””

[Lord Dubs (Lab)]

My Lords, this amendment to the Motion is about the rights of children, giving them their entitlement to claim asylum, which would be declared inadmissible under the provisions of the Bill. We have talked about children a great deal; indeed, concerns about children run right through many of the debates we have had and many of the other amendments. My point is that any child who arrives in this country, even if not by legally approved means, should still not lose their right to claim asylum. If, for example, a child in Calais with family in this country, not finding any legal method, gets here and uses, unfortunately, these nasty people traffickers, all I would say is that surely we should not deny that child the right to come to this country and claim asylum here; or, having got to this country, to claim asylum here. It is a very simple proposition.

As I understand it, in most instances they will not be removed from this country until they are 18, but at that point they will be removed. This seems to me a very harsh provision, penalising some of the most vulnerable asylum seekers that there can be: children.

There are two other amendments to Motions to do with children, Motion J1 in the name of the noble Baroness, Lady Mobarik, and Motion K1 in the name of the right reverend Prelate the Bishop of Manchester. Both are good and both are concerned with the length of time that a child might have to stay in detention. They seek to limit that to fewer days and I shall want to support them both. They do not go as far as my Motion E1, which is much more comprehensive and a much better way of protecting the rights of children. However, we have to be realistic and I shall certainly give my full support to Motions J1 and K1.

I have thought about this at length and had quite detailed discussions with my colleagues. The point is that we, of course, want to support Motions that have the best chance of making the Commons think again. I was persuaded that the Motions in the name of the noble Baroness, Lady Mobarik, and the right reverend Prelate the Bishop of Manchester probably have a better chance of making the Commons think again than something coming from me, even if my Motion is, with all due respect, better. I therefore feel that the right thing to do is to support a Motion tabled by a Conservative and a Member from the Bishops’ Bench, because they are more likely to persuade the Government. They do not have to persuade the Minister but they are more likely to persuade Members of the Commons. It is in that spirit that I have spoken to Motion E1, but I shall in due course be very keen to support the Motions I have referred to. I will not therefore press Motion E1 to a vote, but I shall certainly vote for the other Motions.

[Lord Murray of Blidworth (Con)]

My Lords, as ever, the noble Lord, Lord Dubs, was ahead of me, and clearly I should address the amendments in this group. I have already moved Motion E, which is:

“That this House do not insist on its Amendment 8.”


With the leave of the House, I shall speak also to Motions J, K, L, M and N.

The Government have considered carefully the concerns raised in your Lordships’ House about the detention of unaccompanied children and pregnant women. We recognise the sensitivities around the detention of these cohorts and, accordingly, the Government have brought forward amendments in lieu, to which the Commons has agreed.

Regarding the detention of pregnant women, Amendments 38A to 38E are wholly in line with those tabled on Report by the noble Baroness, Lady Lister, and my noble friend Lady Sugg. These amendments preserve the existing 72-hour time limit on the detention of pregnant women. As now, this 72-hour time limit would be extendable to an absolute maximum of one week, provided there is ministerial authorisation in place for the extension. It is important to note that, as per the existing Section 60 provision, this time limit will apply only where an immigration officer or the Secretary of State, as the case may be, is satisfied that the woman is pregnant. I trust that these amendments will be welcomed on all sides of the House.

On the detention of unaccompanied children, the challenge we received in the House of Commons was that in enabling a person to apply for First-tier Tribunal immigration bail after 28 days of detention, the Bill did not differentiate between adults and unaccompanied children, and there needed to be judicial oversight of the detention of unaccompanied children much earlier in the process. Amendments 36A and 36B, agreed by the Commons, do just that. They enable the First-tier Tribunal to review the detention of an unaccompanied child after eight days, where the detention is for the purposes of removal. The eight-day period aligns with the existing framework governing immigration bail for those detained at ports and the eight-day period for making a suspensive claim under the Bill.

I again assure my noble friend Lady Mobarik and other noble Lords that any period of detention for unaccompanied children will be the shortest possible. Where there is doubt that a person is indeed aged under 18, as they claim to be, they will be treated as a child while an age assessment is undertaken. Such a person will be detained in age-appropriate accommodation, as the law already provides. This is provided for by the Detention Centre Rules 2001, made under Section 153 of the Immigration and Asylum Act 1999. Rule 11 provides:

“Detained persons aged under 18 and families will be provided with accommodation suitable to their needs”.


If no such accommodation is available, an unaccompanied child will not be detained and will be transferred to a local authority instead as soon as possible. I hope this provides the assurances that my noble friend has been seeking.

The Commons has proposed no change to the Bill in response to my noble friend’s Amendment 33, which relates to the detention of families. We believe this amendment would put children at risk, as well as significantly weakening our ability to remove people from the UK, in accordance with the duty provided for in Clause 2. Such a change would incentivise unscrupulous individuals to co-opt unaccompanied children into a bogus family unit to escape detention. This presents very real safeguarding risks for those children. I hope my noble friend, having secured an important change to the Bill in respect of the detention of unaccompanied children, will be content not to pursue her Amendment 33 any further.

I turn to Motion M and the amendments originally tabled by the noble Lord, Lord Carlile, which sought to reinstate the existing Hardial Singh principles. Here again the Commons has agreed with the Government that the changes should be made to the existing legislation and that Clause 11 should stand. The Hardial Singh principles provide, among other things, that a person may be detained only for a period that is reasonable in all the circumstances and that if, before the expiry of the reasonable period, it becomes apparent that the Home Secretary will not be able to examine, effect removal or grant leave within a reasonable period, that person’s detention should not continue. The Government continue to take the view that it is for the Home Secretary, not the courts, to decide such matters as she will be in full possession of the relevant facts and best placed to decide whether continued detention is reasonable in all the circumstances. As I say, the Commons has endorsed this approach, and I hope that the noble Lord, having achieved some significant changes to other aspects of the Bill, will be content to agree Motion M.

Motion N relates to the right reverend Prelate the Bishop of Durham’s Amendment 50 to Clause 16. This relates to the Secretary of State’s power to direct a local authority in England to cease accommodating an unaccompanied child and to transfer the child into Home Office-provided accommodation. The amendment would limit the power such that it can be exercised only where the transfer would be in the best interests of the child.

We all accept that the best interests of the child is a very important consideration. That is why the Secretary of State is already required, under Section 55 of the Borders, Citizenship and Immigration Act 2009, to have regard to the need to safeguard and promote the welfare of children when exercising her immigration functions. In exercising the power in Clause 16, the Home Office will continue to comply with the Section 55 duty. I should also emphasise again that we expect to exercise the power in Clause 16 in only limited circumstances —for example, in advance of returning an unaccompanied child to a parent in their home country.

Finally, I can deal briefly with Motion E, given that this covers similar ground to Motion F, which we have already debated. As I said, it remains the Government’s contention that declaring such claims to be inadmissible is a core part of the scheme provided for in the Bill. The Motion from the noble Lord, Lord Dubs, would incentivise the people smugglers to prioritise young people, putting more lives at risk and splitting families. I am sure that the noble Lord would not wish to see this.

The Government have listened to the concerns raised by noble Lords about the Bill’s provisions relating to detention and the Commons has agreed significant changes. I hope, on this basis, that the noble Baroness, Lady Lister, my noble friend Lady Mobarik and the right reverend Prelate the Bishop of Manchester would be content to agree Motions J, K and L. Where the Commons has disagreed with your Lordships’ amendments to Clauses 4, 11 and 16, I hope that the noble Lords, Lord Dubs and Lord Carlile, and the right reverend Prelate the Bishop of Manchester will be minded to accept that verdict and agree Motions E, M and N.

[The Lord Bishop of Manchester]

My Lords, I am very grateful to the noble Lord, Lord Dubs, for his support for my Motion K1, even though I suspect we would both prefer his stronger Motion. I also welcome the government amendments that would allow an unaccompanied child to seek bail after eight days if they have been detained for removal.

I struggle to see why similar rules should not apply to all children. Hence, Motion K1 seeks to rectify the unreasoned omission of children who are with their families. It proposes a 24-hour extension to the current statutory 72-hour time limit for detention of children with families. Hence, the detention of these children would not be indefinite but be for no more than 96 hours or, if a Minister personally approved it, for no more than seven days. This seems a fair and reasonable change and I urge the Government to seriously reflect on it. I really cannot see that it is morally justified not to have equal provisions for children with families and those who are alone; one child is not different from another.

It remains the fact that the institutional nature of detention affects both the physical and mental development of the child and leads to their significant emotional and psychological regression. These impacts, which were witnessed often in children prior to 2010, were not limited to unaccompanied children. All children suffered under a regime which this Government are now proposing to reintroduce without limit for unaccompanied children. I cannot accept that it is right to be prepared to lock up these children for an indefinite period, simply because they happen to arrive with families, when we know the grave consequences. The evidence has not changed. How can it now suddenly be tolerable?

21:45

I am grateful that the Government have agreed to retain the existing limits on the detention of pregnant women. I thank them for that. Yet, as soon as a mother has given birth, the Government seem prepared to detain her and her newborn child indefinitely—really? Hence, I am minded, in due course, to test the opinion of the House on this matter.

I will also be supporting Motion J1, in the name of the noble Baroness, Lady Mobarik, who is, as we all know, an admirable champion of children’s rights.

Motion N2, on unaccompanied children, in this group, is also in my name. As my right reverend friend the Bishop of Durham argued on Report, the Home Office has neither the expertise, knowledge or experience to look after children. The child rights impact assessment admits that the Home Office is

“still working through the operational processes relating to unaccompanied children and the circumstances in which we will use this vice versa power”.

Just last week, in the now notorious Mickey Mouse fiasco to which other noble Lords have already referred—let us see how many times it comes up tonight—we have seen the well-being of children sacrificed in the pursuit of the wish to appear intentionally unwelcoming to children, who will be way beyond frightened and scared. It is hard to avoid the conclusion that the Home Office lacks the basic humanity required, and even the understanding of what it means to be a vulnerable child. However, while I strongly urge the Government to reflect further on this matter, I will not be testing the mind of the House on Motion N2 tonight.

[Baroness Mobarik (Con)]

My Lords, I shall speak to Motion J1 in my name. First, I am grateful to the Minister for his invitation to discuss this matter last week and for acknowledging the particular vulnerabilities of children who arrive in this country alone. But, having carefully read the Government’s Amendments 36A and 36B in lieu, I think it is clear that the Bill would contain no absolute time limit or safeguards on the powers to detain unaccompanied children. Permitting a tribunal to grant bail to only some detained unaccompanied children, after eight days, is not the same as an actual time limit on detentions for all unaccompanied children. They would still be a great many unaccompanied children who could be detained without any time limit and to whom the First-tier Tribunal could not grant bail for 28 days. Therefore, I would like to provide the other place with an opportunity to reconsider this matter.

If an unaccompanied child is detained under any of the new powers in the Bill, under the amendments I now propose, that child cannot be detained for more than 72 hours. If in regulations the Home Secretary wishes to specify a time limit for detaining unaccompanied children for less than 72 hours, then of course she has that prerogative. However, a matter as fundamental as the ultimate period for which an unaccompanied child can be held in detention should not be left to mere regulations or verbal assurance. It must be stated in the Bill. Overturning the legal safeguards and time limits introduced—and I say once again, under a Conservative Prime Minister and Conservative Home Secretary—and detaining children without any stated time limit serves neither British nor Conservative values. Therefore, I will divide the House on this, so that we may provide the Commons with the opportunity to think again carefully about the powers created by this Bill. I ask the House to approve Motion J1.

[Baroness Lister of Burtersett (Lab)]

My Lords, with reference to Motion L, I welcome the government amendments, which have the same effect as our original amendments of restoring the status quo ante with regard to pregnant women.

Before my round of thanks, I have one query from the lawyer who has kindly been advising us. He says that his only concern is that they are a separate provision for the new powers in paragraph 16(2C) and proposed new subsection (2A) of Section 62 rather than reapplying the protection of Section 60. The reason that this matters is that for the purposes of the time limit, the period of detention under the old detention powers would not be aggregated with the period of detention under the new detention powers. However, now, in theory, a pregnant woman could be detained for up to seven days under the old detention powers and then for another seven days under the new detention powers. Could the Minister confirm that this is not the intention and that the powers would not be used in this way?

I turn to my thanks. First, I pay tribute to Women for Refugee Women, in particular Gemma Lousley, for all their invaluable work in pressing this amendment, and also to David Neale of Garden Court Chambers for his pro bono legal advice. I thank all noble Lords around the House who have supported the amendments by adding their names, speaking in support, voting in support or deliberately abstaining. I am particularly grateful to those Members—largely women, I think—on the Government Benches who could not bring themselves to support the Government on this. That there was so much support for the amendments on the Government Benches is largely down to the noble Baroness, Lady Sugg, who I think of as a noble friend. She has been tireless, both behind the scenes and on the Floor of the House, as was recognised by the Immigration Minister yesterday.

The preservation of the time limits on the detention of pregnant women in recognition of the likely health impact of the original proposal to remove them represents one small beacon of light in what otherwise continues to be the gloom of a punitive Bill that will do untold harm. The government Motion was described on both sides of the Commons yesterday as a no-brainer. Nevertheless, it would be churlish not to recognise that the Government have listened on this issue at least, and I thank them for doing so.

[Baroness Butler-Sloss (CB)]

My Lords, I rise to speak to Motion N1 in my name, which is just ahead of the Motion in the name of the right reverend Prelate the Bishop of Manchester. This is a rather different point; it relates to a situation where there may be a stand-off between the Home Office and the local authority.

Picture a child who is either being accommodated under Part III of the Children Act or for whom a judge or magistrate has made a care order which the local authority is complying with, and the Home Office, according to Clause 16, wishes the child to be removed in order to send them back to their parents or to some other place. Although it said to use it only occasionally, it does not say in Clause 16 that the local authority should be consulted or, rather more importantly, should actually consent. In particular, if there is a care order, that is an order of the court. As far as I can see, it would be very difficult for the Home Office just to pick the child up and take them away where there is a court order saying that the child must live with the family, or whoever it may be, arranged by the local authority.

Quite simply, what I am seeking is that the Secretary of State should bear in mind all these things and not just consult the local authority but gain its consent to the removal of the child from its care. It is a very simple proposition.

What I would like from the Minister is either an assurance that the Secretary of State will do that, or that he will take it back to the Home Office for the Secretary of State to consider and agree to it. I do not propose to put this issue to the House, but it is very important that the Home Office’s interaction with local authorities under Clause 16 be clarified and that the Home Office recognise the fact that it cannot just remove a child if it is contrary to the Children Act.

[Baroness Sugg (Con)]

My Lords, on the narrow issue of the detention of pregnant women, I thank the Government and the Minister for listening to and considering carefully the arguments made in your Lordships’ House and acting on them. Thanks to the many who made the case, and the government amendment, the existing protection of a 72-hour time limit remains in place. That is a small change, but it will make a big difference to the women in question, and for that I am very grateful.

[Lord Scriven (LD)]

My Lords, on these Benches, we support Motions E1, J1, K1, N1 and N2. We welcome the Government’s Motion L on time-limiting detention for women who are pregnant. This suite of Motions is about the depriving of liberty of some of the most vulnerable people who reach these shores and, in particular, the welfare of children.

Government Motion J is narrow, as the noble Baroness, Lady Mobarik, said. It is a limited concession, and as Tim Loughton pointed out in the other place yesterday, unaccompanied children’s arrivals are to be treated the same way as adult arrivals in terms of their detention for initial processing, and the amendment proposes nothing for unaccompanied children detained for those purposes.

As the noble Baroness, Lady Mobarik, said, for those who are deemed in detention for removal, there is no automatic condition of eight days; there is a condition that, at that point, a child can ask for bail. Just think of a 10 year-old child in detention: how will they have the support to be able to ask for bail? It is for that reason that, if the noble Baroness moves Motion J1 to a vote, these Benches will definitely support her. The same is true for the right reverend Prelate the Bishop of Manchester’s Motion on unaccompanied children.

I support Motions N1 and N2, and particularly the points made by the noble and learned Baroness, Lady Butler-Sloss. Throughout the passage of the Bill, these Benches have asked on a number of occasions, as have other noble Lords throughout the House, what the role is of the corporate parent—the local authority—under Clause 16. To date, the Minister still has not answered that question. It is really important that the Minister says something from the Dispatch Box; otherwise, this will end up in the court, given the contradiction between the Bill and the provisions in the Children Act 1989, particularly Sections 17 and 47. That is why it is important that the assurance the noble and learned Baroness asked for be addressed by the Minister now. We believe that Motions E1, J1, K1, N1 and N2, if put to the House—particularly Motions J1 and K1—will add a little more humanity, kindness and compassion to the Bill.

[Baroness Berridge (Con)]

My Lords, I will speak to the Motion in the name of noble and learned Baroness, Lady Butler-Sloss, as I had put my name to a similar amendment on Report.

We should not take for granted the decades of work done by many in your Lordships’ House, and others, to put together a child protection system that is well understood. In her most recent email of today, the Children’s Commissioner stated that the local authority must have responsibility for the safety and well-being of children in all settings, including when they are detained.

The child protection system that I have outlined is like a jigsaw: it is well put together and each of the bodies involved knows what its role currently is. That includes many bodies, such as the police, the local authority, schools, the NHS and, at government level, the Department for Education. It is noteworthy that in many of the legal cases taken by children’s rights organisations, the main submissions, if not the only submissions, that the court has wanted to hear are from the Department for Education, not the Home Office.

What we have with this jigsaw puzzle of people responsible is a Home Office that seems to have taken out some of the pieces of that child protection system, and we are not sure how they fit together again. Since this is an area where retrospectivity will apply to those children in hotels—they are now in hotels again—I hope that there will be clarity, at last, from my noble friend the Minister as to how the pieces of that well-understood jigsaw will be put back together, so that everybody knows what their role is. We know from history that if people are confused about their role in a child safeguarding situation, information, communication and the welfare of children themselves can fall between those gaps.

22:00

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been an interesting debate and I thank my noble friend Lord Dubs for the way that he introduced his amendment to Motion E. He has been extremely practical and political, if I may use that word, in the way that he proposes to deal with the suite of amendments in this group. I agree with him that the two Motions in the names of the noble Baroness, Lady Mobarik, and the right reverend Prelate the Bishop of Manchester, Motions J1 and K1, stand the best chance of making the House of Commons think again. On that basis, from these Benches we will be supporting the noble Baroness and the right reverend Prelate if they choose to put their Motions to a vote.

I want to comment briefly on the contributions of the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Berridge, and on the point made by the noble Lord, Lord Scriven. In a sense, they are talking from a local authority point of view. I too got the email from the Children’s Commissioner today; she is absolutely right to point to the jigsaw of child protection, which is very much overseen by local authorities. As she rightly pointed out, retrospectivity will apply to those children because that is the point which the Government did not concede on.

Responsibility is key to trying to resolve this as clearly as possible. We hope that the Minister will be able to say something clearer, but the real point is that if it is not, it will be resolved in the courts. The noble Lord, Lord Scriven, made that point and it is a very fair one. I understand that the noble and learned Baroness will not be pressing her amendment to a vote. Nevertheless, the Minister should give as clear an explanation as possible of how this matter will be looked at. For the purposes of this group, we will support Motions J1 and K1.

[Lord Murray of Blidworth (Con)]

My Lords, I thank the House for the contributions to this debate. I will focus, if I may, on three points and address first the point raised by the noble Baroness, Lady Lister, on aggregating detention periods. Noble Lords will recall that a question was asked whether the 72-hour limit for pregnant women could be evaded by detaining a pregnant woman first under the powers in the Bill, and then under the powers in the Immigration Act, or vice versa. From a practical point of view, any pregnant women subject to the Clause 2 duty would be detained under the new detention powers provided for in Clause 10. I assure the noble Baroness that we would not detain pregnant women under existing powers then switch to new detention powers, or vice versa, in order to double the detention period.

I thank my noble friend Lady Sugg for her kind remarks. I am gratified for the receipt from Members of the House for the position which we have arrived at in relation to pregnant women.

I turn to the issues raised by the noble and learned Baroness, Lady Butler-Sloss, for whom I have very great admiration. They were raised also by the noble Lords, Lord Scriven and Lord Ponsonby, and my noble friend Lady Berridge in relation to Motion N1.

Amendment 50B would afford local authorities influence over whether the Home Secretary can utilise her powers. I am afraid we do not agree that her powers should be fettered in this way if a local authority simply does not consent. It would also create additional decision-making burdens for local authorities and could have unintended consequences—for example, if local authorities faced legal challenges in respect of their decisions. The Home Office, of course, already works closely with local authorities on matters concerning unaccompanied children and will continue to do so.

I turn to the question raised by the right reverend Prelate the Bishop of Manchester and Motion N2. The Home Office considers that Amendment 50C, tabled by the right reverend Prelate, is unnecessary. That is so because of Section 55 of the 2009 Act, which already requires the Secretary of State to have regard to the interests of children as a primary factor in immigration decisions affecting them. I assure the House that, in making decisions and in devising policy guidance under the Bill, the Home Office will continue to comply with the Section 55 duty.

In answer to the noble Lord, Lord German, and my noble friend Lady Berridge, the Home Office does not have, and therefore, for clarity, cannot discharge, duties under Part III of the Children Act 1989. It is for the local authority where an unaccompanied child is located to consider its duties under the Children Act 1989. There is nothing in the Bill which changes this position and local authorities will be expected to meet their statutory obligations to unaccompanied children from the date of arrival. The relevant duties under the Children Act 1989 sit with the local authority in which the young person is physically present. Accommodation of unaccompanied children by the Home Office does not change the obligations of any local authority in respect of assessment and the provision of services and support, including, where appropriate, suitable accommodation.

[Lord Dubs (Lab)]

My Lords, I am grateful to the Minister and all noble Lords who have contributed. They have covered a number of aspects, all under the heading of this debate. I am not persuaded by the Minister’s arguments that the right reverend Prelate the Bishop of Manchester and the noble Baroness, Lady Mobarik, are not totally right in what they are saying. I very much hope the Minister will say something more positive to support them.

I have already indicated that I do not wish to press Motion E1, and I beg leave to withdraw it.

Motion E1 withdrawn.

Motion E agreed.

Motion F

Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 9, to which the Commons have disagreed for their Reason 9A.

9A: Because the Amendment is contrary to the purpose of the Bill to prevent and deter unlawful migration.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion F. I beg to move.

Motion F1 (as an amendment to Motion F)

Moved by

[Lord German]

At end insert “, and do propose Amendment 9B in lieu—

9B: Clause 4, page 6, line 13, leave out “cannot be considered under the immigration rules” and insert “must be considered under the immigration rules if the person who made the claim has not been removed from the United Kingdom within six months of the day the claim is deemed inadmissible, subject to subsection (3B).
(3A) From the point at which the provisions of subsection (3) apply to a person, no other provision made by or by virtue of this Act applies to that person.
(3B) For the purpose of calculating the period of six months under subsection (3), any period during which the person cannot be removed by virtue of section 46 (suspensive claims: duty to remove) is to be disregarded.””

[Lord German (LD)]

I beg to move Motion F1 and wish to test the opinion of the House.

22:08

Division 3

Ayes: 212

---

Labour: 108
Liberal Democrat: 59
Crossbench: 31
Independent: 6
Bishops: 5
Green Party: 2
Plaid Cymru: 1

Noes: 151

---

Conservative: 144
Independent: 5
Crossbench: 1
Labour: 1

22:19

Motion G

Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 23, to which the Commons have disagreed for their Reason 23A.

23A: Because the Amendment is unnecessary as an LGBT person who is a national of a country specified in the Amendment and who makes a protection claim will not be returned to their home country and can make a serious harm suspensive claim in the event that it is proposed to remove them to a safe third country.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion G. I beg to move.

Motion G1 (as an amendment to Motion G)

Moved by

[Lord Etherton]

At end insert “, and do propose Amendment 23B in lieu—

23B: After Clause 6, insert the following new Clause—
“Restrictions on removal destinations: LGBT and other persons
(1) Where the Secretary of State is required by section 2(1) to make arrangements for the removal of a person from the United Kingdom—
(a) trans men and women must not be removed to Brazil;
(b) LGBT persons must not be removed to Gambia, Ghana, Jamaica, Kenya, Liberia, Malawi, Mauritius, Nigeria, Rwanda or Sierra Leone;
(c) no person may be removed to a territory or country listed in Schedule 1 (countries or territories to which a person may be removed) if the exceptional circumstances specified in section 5(5)(b) apply to that territory or country;
(d) no person may be removed to Rwanda until the conclusion of all litigation concerning the lawfulness of arrangements for removal to that country.
(2) the Secretary of State may by regulations amend subsection (1) to—
(a) dd or remove a country or territory, or part of a country or territory, in order to apply relevant decisions of courts and tribunals operating in the United Kingdom and having regard to decisions of the European Court of Human Rights and any other material change of circumstances;
(b) reflect changes made to Schedule 1 by regulations made under section 6.””

22:21

Division 4

Ayes: 209

---

Labour: 107
Liberal Democrat: 60
Crossbench: 28
Independent: 6
Bishops: 5
Green Party: 2
Plaid Cymru: 1

Noes: 143

---

Conservative: 138
Independent: 3
Crossbench: 1
Labour: 1

22:31

Motion H

Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendments 30, 32 and 34, to which the Commons have disagreed for their Reason 34A.

34A: Because it is necessary to ensure that the National Referral Mechanism is not used as a loophole by persons arriving illegally to make false claims to avoid being detained in or removed from the United Kingdom and that persons subject to the clause 2 duty may be detained in order to facilitate their swift removal from the UK.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion H.

Motion H1 not moved.

Motion H agreed.

Motion J

Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendments 31, 35 and 36 and do agree with the Commons in their Amendments 36A and 36B in lieu.

36A: Clause 12, page 21, leave out lines 16 to 23 and insert—
“(3A) A person who is being detained under paragraph 16(2C)(d)(iv) of Schedule 2 to the Immigration Act 1971 or section 62(2A)(d)(iv) of the Nationality, Immigration and Asylum Act 2002 (detention of unaccompanied child for purposes of removal) must not be granted immigration bail by the First-tier Tribunal until after the earlier of—
(a) the end of the period of 28 days beginning with the date on which the person’s detention under any provision of paragraph 16(2C) of Schedule 2 to the Immigration Act 1971 or section 62(2A) of the Nationality, Immigration and Asylum Act 2002 began, and
(b) the end of the period of 8 days beginning with the date on which the person’s detention under paragraph 16(2C)(d)(iv) of Schedule 2 to the Immigration Act 1971 or section 62(2A)(d)(iv) of the Nationality, Immigration and Asylum Act 2002 began.
(3B) A person who is being detained under—
(a) paragraph 16(2C)(a), (b), (c) or (d)(i) to (iii) of Schedule 2 to the Immigration Act 1971, or
(b) section 62(2A)(a), (b), (c) or (d)(i) to (iii) of the Nationality, Immigration and Asylum Act 2002, must not be granted immigration bail by the First-tier Tribunal until after the end of the period of 28 days beginning with the date on which the person’s detention under paragraph 16(2C) of that Schedule or section 62(2A) of that Act began.
(3C) Where a person is detained under a provision of the Immigration Act 1971 and then (without being released) under a provision of the Nationality, Immigration and Asylum Act 2002, or vice versa, the periods referred to in sub-paragraphs (3A) and (3B) begin with the date on which the person was first detained under the relevant provisions of either of those Acts.”

36B: Clause 12, page 22, line 26, after “(3A),” insert “(3B),”

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion J.

Motion J1 (as an amendment to Motion J)

Moved by

[Baroness Mobarik]

Leave out from “36” to end and insert “, do disagree with the Commons in their Amendment 36A and 36B in lieu, and do propose Amendments 36C and 36D in lieu of Amendments 31, 35 and 36—

36C: Clause 10, page 14, leave out lines 41 to 44 and insert—
“(2E) If the person being detained under sub-paragraph (2C) is an unaccompanied child, then the person may not be detained under that sub-paragraph for more than a period of 72 hours.
(2EA) Where a person is detained under a provision of the Immigration Act 1971 and then (without being released) under a provision of the Nationality, Immigration and Asylum Act 2002, or vice versa, the period referred to in sub-paragraph (2E) begins with the point at which the person was first detained under the relevant provisions of either of those Acts.
(2EB) The Secretary of State may, by regulations, specify time limits of less than 72 hours that apply in relation to the detention of an unaccompanied child under sub-paragraph (2C).”

36D: Clause 10, page 16, leave out lines 32 to 34 and insert—
“(2C) If the person being detained under subsection (2A) is an unaccompanied child, then the person may not be detained under that sub-paragraph for more than a period of 72 hours.
(2CA) Where a person is detained under a provision of the Immigration Act 1971 and then (without being released) under a provision of the Nationality, Immigration and Asylum Act 2002, or vice versa, the period referred to in subsection (2C) begins with the point at which the person was first detained under the relevant provisions of either of those Acts.
(2CB) The Secretary of State may, by regulations, specify time limits of less than 72 hours that apply in relation to the detention of an unaccompanied child under subsection (2A).””

[Baroness Mobarik (Con)]

My Lords, I wish to test the opinion of the House.

22:33

Division 5

Ayes: 220

---

Labour: 107
Liberal Democrat: 59
Crossbench: 36
Independent: 8
Bishops: 5
Conservative: 3
Green Party: 1
Plaid Cymru: 1

Noes: 141

---

Conservative: 137
Independent: 2
Crossbench: 1
Labour: 1

22:44

Motion K

[Lord Murray of Blidworth]

Moved by

That this House do not insist on its Amendment 33, to which the Commons have disagreed for their Reason 33A.

33A: Because the Amendment is contrary to the purpose of the Bill to prevent and deter unlawful migration.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion K. I beg to move.

Motion K1 (as an amendment to Motion K)

[The Lord Bishop of Manchester]

Moved by

At end insert “, and do propose Amendment 33B to the words so restored to the Bill—

33B: Clause 10, page 15, line 29, leave out “for any period” and insert “for a period of not more than 96 hours, or for a period of not more than seven days in cases where the longer period of detention is authorised personally by a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975)””

22:45

Division 6

Ayes: 202

---

Labour: 105
Liberal Democrat: 58
Crossbench: 26
Bishops: 5
Independent: 5
Green Party: 2
Plaid Cymru: 1

Noes: 144

---

Conservative: 140
Independent: 3
Labour: 1

22:56

Motion L

Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendments 37 and 38 and do agree with the Commons in their Amendments 38A to 38E in lieu.

38A: Clause 10, page 14, line 37, at end insert—
“(2CA) But if the immigration officer is satisfied that a woman being detained under sub-paragraph (2C) is pregnant, then the woman may not be detained under that sub-paragraph for a period of—
(a) more than 72 hours from the relevant time, or
(b) more than seven days from the relevant time, in a case where the longer period of detention is authorised personally by a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975).
(2CB) A woman who has been released as a result of sub-paragraph (2CA) may be detained again under sub-paragraph (2C) in accordance with sub-paragraph (2CA).
(2CC) Where a woman being detained under sub-paragraph (2C) has previously been detained under section 62(2A) of the Nationality, Immigration and Asylum Act 2002 and has not been released in between, the definition of “the relevant time” in sub-paragraph (2CD) is to be read as if paragraph (b) referred to the time when the woman was first detained under sub-paragraph (2C) or section 62(2A) of that Act.
(2CD) In sub-paragraphs (2CA) to (2CC)—
“the relevant time” means the later of—
(a) the time at which the immigration officer is first satisfied that the woman is pregnant, and
(b) the time at which the detention under sub-paragraph (2C) begins;
“woman” means a female of any age.”

38B: Clause 10, page 16, line 28, at end insert—
“(2AA) But if the Secretary of State is satisfied that a woman being detained under subsection (2A) is pregnant, then the woman may not be detained under that subsection for a period of—
(a) more than 72 hours from the relevant time, or
(b) more than seven days from the relevant time, in a case where the longer period of detention is authorised personally by a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975).
(2AB) A woman who has been released as a result of subsection (2AA) may be detained again under subsection (2A) in accordance with subsection (2AA).
(2AC) Where a woman being detained under subsection (2A) has previously been detained under paragraph 16(2C) of Schedule 2 to the Immigration Act 1971 and has not been released in between, the definition of “the relevant time” in subsection (2AD) is to be read as if paragraph (b) referred to the time when the woman was first detained under subsection (2A) or paragraph 16(2C) of that Schedule to that Act.
(2AD) In subsections (2AA) to (2AC)—
“the relevant time” ” means the later of—
(a) the time at which the Secretary of State is first satisfied that the woman is pregnant, and
(b) the time at which the detention under subsection (2A) begins;
“woman” means a female of any age.”

38C: Clause 11, page 17, line 24, after “17A” insert “further”

38D: Clause 11, page 18, line 2, at end insert—
“(d) paragraph 16(2CA) to (2CD) (limitation on detention of pregnant women).”

38E: Clause 11, page 19, line 27, at end insert—
“(aa) subsections (2AA) to (2AD) (limitation on detention of pregnant women);”

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion L. I beg to move.

Motion L agreed.

Motion M

Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendments 39, 40, 41, 42, 43, 44, 45, 46, 47, 48 and 49, to which the Commons have disagreed for their Reason 49A.

49A: Because it is properly a matter for the Secretary of State to determine whether continued detention of a person is reasonable in all the circumstances.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion M. I beg to move.

Motion M agreed.

Motion N

Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 50, to which the Commons have disagreed for their Reason 50A.

50A: Because the Secretary of State will be required under section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of the child when making a decision under clause 16(4).

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion N. I beg to move.

Motions N1 and N2 not moved.

Motion N agreed.

Motion P

Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 56, to which the Commons have disagreed for their Reason 56A.

56A: Because the Bill already makes sufficient provision to enable a potential victim of modern slavery to remain in the UK where the Secretary of State considers it necessary for the person to do so for the purpose of cooperating with a public authority which is investigating their exploitation.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion P. I beg to move.

Motion P1 (as an amendment to Motion P)

Moved by

[Lord Randall of Uxbridge]

At end insert “, and do propose Amendment 56B in lieu—

56B: Clause 21, page 26, leave out line 19 and insert—
“(3A) If the relevant exploitation took place in the United Kingdom subsection (2) also does not apply in relation to a person—
(a) for a period of 30 days following the making of the decision referred to in subsection (1)(b);
(b) for a further period if the Secretary of State deems it necessary for a victim to establish cooperation with a public authority in connection with an investigation or criminal proceedings in respect of the relevant exploitation; and
(c) on expiration of the period in paragraphs (a) and (b) if the Secretary of State is satisfied that the person is cooperating with a public authority in connection with an investigation or criminal proceedings in respect of the relevant exploitation for the duration of those criminal proceedings thereafter.
(3B) Where subsection (3) or (3A) applies in relation to a person the following do not apply in relation to the person—
(a) section 22,
(b) section 23, and
(c) section 24.
(4) In this section—””

22:59

Division 7

Ayes: 207

---

Labour: 102
Liberal Democrat: 57
Crossbench: 34
Independent: 5
Bishops: 4
Green Party: 2
Conservative: 2
Plaid Cymru: 1

Noes: 140

---

Conservative: 136
Independent: 2
Labour: 1
Crossbench: 1

23:10

Motion Q

Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 57, to which the Commons have disagreed for their Reason 57A.

57A: Because the Bill already makes sufficient provision to enable a potential victim of modern slavery to remain in the UK where the Secretary of State considers it necessary for the person to do so for the purpose of cooperating with a public authority which is investigating their exploitation.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion Q. I beg to move.

Motion agreed.

Motion R

Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendments 66 and 67, to which the Commons have disagreed for their Reason 67A.

67A: Because it is right that the Government is able withhold protections from all individuals who pose a threat to public order and because the Nationality and Borders Act 2022, as amended by this Bill, provides sufficient discretion in the disqualification decision process.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion R. I beg to move.

Motion R1 not moved.

Motion R agreed.

Motion S

Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendments 73 and 74 and do agree with the Commons in their Amendment 74A in lieu.

74A: Clause 39, page 42, line 32, at end insert—
“(2A) Regulations under subsection (1) may not amend subsection (4) of section 38 to remove any example of serious and irreversible harm which is listed in that subsection when this Act is passed.”

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion S. I beg to move.

Motion S1 not moved.

Motion S agreed.

Motion T

Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 90 and do agree with the Commons in their Amendments 90A, 90B and 90C to the words restored to the Bill by the Commons disagreement to Lords Amendment 90.

90A: Page 53, line 40, after “court” insert “or tribunal”

90B: Page 54, line 1, after “court” insert “or tribunal”

90C: Page 54, line 7, after second “court” insert “or tribunal”

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion T. I beg to move.

Motion T1 (as an amendment to Motion T)

Moved by

[Baroness Chakrabarti]

At end insert “, and do propose Amendment 90D to the words so restored to the Bill—

90D: Page 54, line 3, at end insert “without attempting to give reasonable notice to the Secretary of State so as to allow representations as to why, notwithstanding ongoing proceedings as to the legality of a decision to remove the person, they should nonetheless be removed.””

[Baroness Chakrabarti (Lab)]

My Lords, I understand that Motion T1 is consequential on Motions already passed. I beg to move.

Motion T1 agreed.

Motion U

Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 93, to which the Commons have disagreed for their Reason 93A.

93A: Because it is necessary to remove the right of appeal against an age assessment decision and to provide for any challenge by way of judicial review to be non-suspensive of removal in order to prevent and deter unlawful migration.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion U. I beg to move.

Motion U1 not moved.

Motion U agreed.

Motion V

Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 95 and do agree with the Commons in their Amendments 95A and 95B in lieu.

95A: Clause 55, page 56, line 34, leave out from “may” to “was” and insert “grant relief only on the basis that the decision”

95B: Clause 55, page 56, line 36, leave out from “not” to “considers” and insert “grant relief on the basis that the court or tribunal”

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion V. I beg to move.

Motion agreed.

Motion W

Moved by

[Lord Stewart of Dirleton]

That this House do not insist on its Amendment 102, to which the Commons have disagreed for their Reason 102A.

102A: Because the Amendment is unnecessary as the Government has already committed to implement additional safe and legal routes as proposed in the report to be published under clause 59 as soon as practicable and in any event by the end of 2024.

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

My Lords, I am grateful for the debates we have had on safe and legal routes and their importance. As has been stated hitherto, the Government are committed to providing safe and legal routes, and we recognise the United Kingdom’s role in providing protection for those in need.

The United Kingdom has been proud to offer for many years a range of global resettlement routes as part of our safe and legal offer. Our global resettlement schemes offer safety in the United Kingdom to refugees who have been displaced by conflict, violence and persecution, and identified by the UNHCR as the most in need of resettlement. Beside our global schemes, we also offer country-specific safe and legal routes for those from Afghanistan, Hong Kong and Ukraine.

23:15

I share fully my noble friend Lady Stroud’s desire, and indeed that of other noble Lords across the House, to do more as capacity permits. As such, we have committed to publish a report on existing and any proposed additional safe and legal routes. We have also committed to lay this report before Parliament within six months of the Bill achieving Royal Assent. These commitments are now enshrined in the Bill. In the report, we will set out any proposed additional safe and legal routes alongside our existing routes so that proposals can be considered in the round to help us identify any areas which may not be best served through our existing routes.

As has been explained previously, the Immigration Minister has committed to implement any proposed safe and legal routes as soon as practicable and, in any event, before the end of 2024. Minister Jenrick reiterated that commitment in the other place yesterday and I am happy to repeat it to your Lordships today. I might add that that is a commitment on behalf of His Majesty’s Government and not just by an individual Minister. I hope my noble friend will accept that I cannot speak for the Opposition in that regard.

My noble friend stated on Report that eight months is more than enough time to develop and implement a serious proposal. However, it is important that we dedicate sufficient time for this. To ensure that any new route is implemented effectively, it is important that we follow a proper process, thus avoiding any issues that could significantly negatively impact on some truly vulnerable people. Therefore, I submit that we should continue to work to the timeframe to which the Immigration Minister has committed. A matter of a few months at most, maybe less, is not so great in the scheme of things, but ensuring a proper and considered development, followed by a smooth implementation, of any new safe and legal route could make all the difference to those who come through it.

Ultimately, I believe that the country needs to have a full consideration of how it needs its safe and legal routes to work, which will come through the report and subsequently through proper implementation of any new routes. This is the right way to ensure that we continue to provide sanctuary to those in need of international protection as part of a well-managed and sustainable migration system.

I hope that, on this basis, my noble friend and, indeed, the whole House will be content to agree Motion W. I beg to move.

Motion W1 (as an amendment to Motion W)

Moved by

[Baroness Stroud]

At end insert “, and do propose Amendment 102B in lieu—

102B: After Clause 58, insert the following new Clause—
“Duty to establish safe and legal routes
(1) The Secretary of State must, within three months of the publication of the report required by section 59(1), make regulations specifying additional safe and legal routes.
(2) In subsection (1), a “safe and legal route” means a route which allows relevant persons to come to the United Kingdom lawfully from abroad.
(3) In subsection (2), a “relevant person” is—
(a) a person who, if they were in the United Kingdom, would be a refugee within the meaning of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and the Protocol to that Convention,
(b) a person who, if they were in the United Kingdom, would be eligible for a grant of humanitarian protection in accordance with the immigration rules, or
(c) a person who, if they were in the United Kingdom, could not lawfully be removed from the United Kingdom by virtue of Article 3 or 4 of the Human Rights Convention.””

[Baroness Stroud (Con)]

My Lords, I brought a variation of this amendment to the House on Report. I refer to my entry in the register of interests. I said in that debate that this amendment is very simple. It is designed purely to place a duty on the Government to do what we have just heard they intend to do anyway—introduce safe and legal routes. This should therefore be a simple amendment to respond to. The moral credibility of the entire Bill depends on the existence of safe and legal routes. The basis on which we are disestablishing illegal and unsafe routes is that we are committed to creating legal and safe routes. That therefore needs to be reflected in the Bill.

For the purpose of clarity, I will take two minutes to lay out both the framework that sits alongside this Motion already and why the Government can feel confident in accepting it. First, as we have just heard, the Government have total freedom to undertake consultation with local authorities in any way they choose to ascertain the capacity that exists for local authorities to welcome refugees and asylum seekers through safe and legal routes. This is already committed to in the Bill.

Secondly, the Government then draft their own report, which they have already committed to doing by the end of January. This is already committed to in the Bill. Even then, the number of people who would be able to come via those safe and legal routes would be subject to a cap, as decided and voted on by this House. This is already in the Bill. This is the framework under which this Motion would sit. Its purpose, therefore, is that, within those limits and that context—all of which are already committed to in the Bill—the Government would then have a duty to do what they say they want to do: create safe and legal routes. The lack of a substantial commitment in primary legislation to this end is a serious omission and one that this amendment gives us an opportunity to address.

I am grateful to the Minister for making the statement that the Government intend to outline new safe and legal routes in the January report and implement them as soon as is practicable—in any event, by the end of 2024. However, if this really is the case, surely the Government would want to place it in the Bill, too, so that it cannot get lost with the passage of the time and electoral cycles, as has happened with the consultation, the publication of the report and the structure of the cap. Surely, at the very least, the Government would want to place a duty on themselves to have brought in safe and legal routes no later than the end of 2024.

Let me turn to the timeframe that has been introduced to this revised version of the Motion. I have chosen a timeline of three months after the publication of the Government’s report on safe and legal routes for three reasons: first, this will be nine months after the enactment of the legislation, which is more than enough time to develop and implement a serious proposal and respect the proper process to which the Minister referred; secondly, it is enough time for the Bill to have had effect in stopping the small boats if it is going to do so; and, thirdly, it will ensure that the commitment as set out in legislation should not cut across a general election or purdah next year. As I mentioned on Report, if the Minister would like to propose putting an alternative timeline in the Bill, I would welcome that conversation, but I have not yet heard of an alternative legally binding timeframe from the Minister.

I look forward to hearing the Minister’s response. For all the talk of safe and legal routes, we have reached ping-pong with no commitment to them as part of the Bill. I beg to move.

[Lord Purvis of Tweed (LD)]

My Lords, on behalf of these Benches, I will support the noble Baroness if she presses her amendment to the Motion. I wish to make two points very briefly, but before doing so I declare an interest. I returned last night from the Horn of Africa, where, as I am sure the Minister will be aware, many of the discussions I had with parliamentary colleagues from that region related to this Bill and the damage we are doing to our international reputation.

My first point relates to a letter that the noble Lord, Lord Murray, sent me after the conclusion of Report stage. I thank him for it. It referred to one of the existing schemes that the Government operate. It is an uncapped scheme—the UK resettlement scheme. In Committee and on Report I asked for clarification of whether the Government’s uncapped scheme has, by virtue of ministerial discretion, in effect become capped.

That scheme, which is global, is now being prioritised only for those from Afghanistan, in effect closing routes from all other countries that we have debated in this debate so far. It took until the 10th paragraph of the Minister’s letter to say, effectively, that I was correct. He said:

“As a result, we are necessarily prioritising those who have been referred by the UNHCR and who are already awaiting resettlement”.


That means that we have closed the safe and legal routes that we are seeking to expand, as the noble Baroness has argued for.

The Advocate-General for Scotland suggests that the Government should not be criticised for having a delay. The outstanding question is: why do the Government not have a baseline capacity now that any safe and legal routes would operate under, and what funding would be available to it? Which countries are the Government considering as candidate countries for new safe and legal routes? The Government’s opaqueness suggests that they do not have a plan that would be ready on the conclusion of the Bill, so it is necessary that we put in statute the guarantee that we will have these routes.

The second point I wish to ask the Minister for clarification on is the use of overseas development assistance. The Government have used overseas development assistance to score all the budgets for those to be resettled under the Bill—indeed, for asylum under all the schemes for safe and legal routes. This is at a cost of £1.9 billion of ODA, which has been taken away from other development projects in many of the candidate countries from which we are seeking safe and legal routes.

I understand that the Bill, and the way it has been drafted, means that the Home Office will no longer be able to score any of those individuals who will be deemed inadmissible under overseas development assistance. That means that, under the current budget, the Home Office itself would have to find up to £1.9 billion of expenditure which could not be scored against overseas development assistance. Under the Development Assistance Committee rules, the Government are now placing on the taxpayer inordinate sums of money for a Bill that cannot be operated and is inoperable. Will the Advocate-General confirm to me now that that is the case and the measures under this Bill will mean that the current way that the Government are funding those to be resettled will no longer be able to be used and there is an enormous black hole in the funding of this scheme?

Regardless of the answer, we support the noble Baroness, Lady Stroud. We need the guarantee because, so far, the Government have been woeful in offering any reassurance.

[Lord Coaker (Lab)]

My Lords, I would just like to say how much these Benches support the Motion in the name of the noble Baroness, Lady Stroud, for the reasons she outlined in her introduction. If she seeks to test the opinion of the House, we will certainly support her.

[Lord Stewart of Dirleton (Con)]

My Lords, we do not characterise the time taken properly to consider the identification and implementation of safe and legal routes as being in any sense a delay. Rather, it is a proper, considered application of thought to make sure that the measures will work correctly. Beyond that point, I have nothing further to add.

[Baroness Stroud (Con)]

I would like to test the will of the House.

23:29

Division 8

Ayes: 174

---

Labour: 84
Liberal Democrat: 52
Crossbench: 23
Independent: 5
Bishops: 4
Conservative: 3
Green Party: 2
Plaid Cymru: 1

Noes: 122

---

Conservative: 118
Independent: 2
Crossbench: 1
Labour: 1

23:40

Motion X

Moved by

[Lord Bellamy]

That this House do not insist on its Amendment 103, to which the Commons have disagreed for their Reason 103A.

103A: Because the Amendment is unnecessary as section 1 of the Crime and Courts Act 2013 already provides for the National Crime Agency to have functions in relation to combating organised crime; this function encompasses organised immigration crime.

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

My Lords, in moving Motion X, with the leave of the House, I will also speak to Motion Y.

Motion X relates to the function of the National Crime Agency. On Report, the noble Lord, Lord Coaker, indicated that he had brought forward his amendment to generate a debate about the role of the NCA in tackling organised immigration crime. That debate has been most useful, but on the substance of the amendment I hope that your Lordships will accept that it is not in fact needed, as the Commons has decided.

As regards proposed new Section 6A of the Crime and Courts Act 2013, which is now proposed in Amendment 103B, I respectfully suggest that the NCA’s annual report and annual plan already set out the range of activities in which it is already engaged to tackle the cross-channel people-smuggling gangs. Again, this is an unnecessary addition to the 2013 Act.

Finally on this aspect, I gently say that this here is, after all, the legislature. We are not the Executive, and I would respectfully suggest that the legislature should be slow to overmanage the independent executive agencies, when there is no compelling reason to do so in this case. That is the Government’s position on Motion X.

As regards Motion Y, the Government are of course grateful to have the further opportunity to discuss Lords Amendment 104 with the most reverend Primate the Archbishop of Canterbury. The Government can wholeheartedly concur with the sentiments behind this amendment. While our immediate focus is on enacting this Bill, we also need to take a longer-term view if we are to tackle refugee crises and human trafficking. That is what the Government are doing. The Government entirely accept that these challenges cannot be solved by the UK alone and that we need to work collaboratively with our international partners if we are to achieve our shared goals.

The interconnected nature of migration and the need to work collectively is why the Government are already working with the UN High Commissioner for Refugees and other international partners. Noble Lords will be aware that my right honourable friend the Prime Minister has secured agreements quite recently with France, Italy, Albania and the EU to work together to address illegal migration, through a combination of operational, diplomatic and development-led interventions. The UK has every incentive to continue to develop that work at international level to address the international problems of migration.

Against that background, the Government’s position, while accepting fully the very good, worthy and wise intentions behind the amendment proposed by the most reverend Primate, is that this amendment is unnecessary. If I may, I again respectfully and humbly question whether it is a proper use of legislation to provide in law how a Government—it would be any Governments over the next 10 years—should set out their policy on working with international partners over a 10-year period. Government policies change, adapt and respond to circumstances. What those policies should be is a matter of public debate and political debate.

In the Government’s view, it would be a somewhat unusual use of legislation to set this out alone for migration. Why not do it for defence, health or education? This is particularly where the Government are expected to set out their strategy for working diplomatically with international partners in such a circumstances, unless it is really required. But in the Government’s submission, with all respect to those who support and have proposed this amendment, it is not necessary because the Government are well aware of the need to develop a strategy and co-operate with international partners, as I have just said.

23:45

Motion X1 (as an amendment to Motion X)

Moved by

[Lord Coaker]

At end insert “, and do propose Amendment 103B in lieu—

103B: After Clause 60, insert the following new Clause—
“Organised immigration crime enforcement
(1) The Crime and Courts Act 2013 is amended as follows.
(2) In section 1 (the National Crime Agency), after subsection (10) insert—
“(10A) The NCA has a specific function to combat organised crime where the purpose of that crime is to enable the illegal entry of a person into the United Kingdom via the English Channel (the “organised immigration crime function”).”
(3) After section 6 (duty to publish information), insert—
“6A Duties in relation to organised immigration crime
(1) The Director General must, in addition to other reporting requirements under this Part, make arrangements for publishing information about the NCA’s progress in fulfilling the organised immigration crime function.
(2) Reports under subsection (1) must be made at least once every six months but may be made more frequently if the Director General deems it appropriate.
(3) Reports under subsection (1) must be submitted to the Secretary of State.
(4) Reports under subsection (1) may, if the Director General deems it appropriate, include recommendations regarding potential additional measures in relation to the NCA’s organised immigration crime function.
(5) The Secretary of State must, as soon as practicable, lay before both Houses of Parliament—
(a) a summary of each report under subsection (1), and
(b) the Secretary of State’s response to the report.””

[Lord Coaker (Lab)]

My Lords, before I speak to my own amendment, I would like to say that we very much support the most reverend Primate’s Motion Y1. Contrary to what the Minister has said, it gives us a great and important opportunity to discuss these global issues, which matter so much. Some of you will have listened to Nick Robinson on the “Today” programme—he is brilliant, of course—who highlighted some of the issues that have emerged in various areas of the world. The most reverend Primate gives us the opportunity to do that, and we very much support his Motion.

I do not intend, given the hour, to speak for long to my Motion. In the whole discussion we have had on the Bill, my proposed amendment is the only one that deals with criminal gangs. This is one of the most important ways to tackle the problem of illegal migration. Contrary to what the Minister has just told us, it is part and parcel of what Parliament should be doing—legislating in the face of what the Government themselves have described as a national emergency. The full power of the state is required to tackle this issue. It is only right that Parliament put forward amendments and Motions and ask itself and the agencies that work for the state whether enough is being done. That is what my Motion seeks to do.

To be honest, I could not believe it when the Minister said that there was no compelling reason to do this. In the last few months, I have not heard anything different from the Government about the crisis unfolding across the channel, with hundreds of people—a record number just a few days ago—coming across the channel every day. Frankly, there is every compelling reason to do something to tackle the criminal gangs who are exploiting some of the most vulnerable.

One alternative we have to the Government’s proposal concerns the international nature of the crisis, which the most reverend Primate will no doubt refer to. In my Motion I refer to the need for not only action by the National Crime Agency but international co-operation of law enforcement and police forces across Europe and beyond if we are to tackle this problem. I hope that your Lordships will feel able to accept my Motion, because there is a continuing need to ask the Government whether we are doing enough to tackle and break up the criminal gangs and to get to the really big figures who organise this business on a massive scale and exploit the weakness and vulnerability of people across the continent and beyond. Just by demanding that the Government answer that, we can get some of the answers we deserve. I look forward to the Minister’s reply, and I beg to move.

[The Archbishop of Canterbury]

My Lords, I am very grateful to the noble and learned Lord, Lord Bellamy, and to the noble Lord, Lord Coaker, for what he said. Like him, I will be brief.

Immigration and asylum, as the long series of debates on this Bill has shown, is an extraordinarily divisive issue. Speaking as someone who has been deeply embedded in east Kent for more than a decade now, I know from experience the extent to which communities are divided and individuals are torn between their desire to do what they know is right and care for those arriving, and their apprehension about the impact on local communities. One understands both those feelings very well.

When this amendment was tabled in its previous form last week, it produced considerable reconciliation and unity across the House. It was agreed that this is a massive, international issue on a generational basis and that tackling it needs profound thinking on a long-term basis. Legislation and strategy must be fitted to the problem, not the problem to the legislation. That is not how it works. For some things we do not debate strategy or have strategy on the face of a Bill, but it is impossible to imagine that we can solve a problem of this kind by taking short-term view after short-term view. It is essential that the solutions, as we go forward, bring together the whole of politics, all sides of both Houses, and unite our country instead of using this as a wedge issue to divide things.

This is a moment of reconciliation and an opportunity for profound long-term thought. This happens with climate change, on which there is legislation about 2050, never mind 10 years’ time; it happens with defence, where documents are produced that look at our proposals out to 2030; it happens with spending plans, where we have three-year committed views on spending because we know that you cannot do it in 12-month sections.

Secondly, this provides accountability. I could not agree more that a legislature is not operational, but it is the place in which the operational Executive is held to account, never mind which party it is. That will be as inconvenient to any other party in government as it is to the current party and there will be moments, if another party is in government, when it will not like it. That is the nature of our constitution. This provides for accountability; Ministers and Secretaries of State must come to both Houses and allow their view of the world to be tested, challenged, informed and improved.

Thirdly, it enables flexibility. The strategy shifts and changes as circumstances shift and change. Most of your Lordships will know Keynes’s remark:

“When the facts change, I change my mind. What do you do?”


Of course we will need to change our mind as time goes on—if the boats are stopped, if new threats emerge to do with migration and if there are new issues.

The 10-year strategy will enable the whole country, united, to understand where we are going, what the sacrifices are and how they will be mitigated. This is not a party-political issue but one in which we must work together: if we work separately, we will fall separately. Finally, it puts us back into leadership globally. Without leadership, we cannot lead as this country should do and as we have so often shown we can. This is an international issue. We have enormous clout. It does not involve only the UNHCR, who I think are among the most extraordinary people I meet, but so many other groups. We need to see how that leadership is being exercised.

If this Motion passes this evening or if I have eloquently persuaded the Minister to stand up and say that he has changed his mind—I am not that hopeful—there are, of course, other ways of doing it. Before we come back for the next bit of ping-pong, I would be very happy and open to talk about alternative, but solid and dependable, ways of achieving the same ends for our country: reconciliation over this issue, accountability for this and future governments, flexibility in strategy, and leadership in the world. There may be other ways, and I am very open to those. I beg to move.

[Lord Blunkett (Lab)]

My Lords, as someone who rarely goes to bed after 11 pm, I will be incredibly brief. I will comment on both propositions and give my support to my noble friend Lord Coaker and to the most reverent Primate.

We reached an agreement with the French 21 years ago that tackled organised criminality, not its victims. For a time, it was successful. The business model changed, and we must change with it. The National Crime Agency, working with its counterparts in France, could do a similar job, with the Government negotiating with the Government of France. We could pay for a licensing scheme in France that would make it a criminal offence for anyone to purchase, transport or sell a boat without a licence. Our agencies and theirs could then work together to tackle the organised criminal fraternity, who are bringing such misery.

In support of the most reverend Primate, if we ever needed a long-term strategy of 10 years rather than 10 months, one geared not to a general election but to solving a problem, and to dealing with it internationally, on a long-term basis, we need it now. That is why this House should support both propositions.

[Lord Paddick (LD)]

My Lords, today the Government heralded a reduction in the vacancies in the social care sector. This was achieved mainly through the arrival of 70,000 overseas workers in the last year, while the Bill tries to stop 45,000 people desperately seeking sanctuary in the UK. We on these Benches support Motions X1 and Y1. In a Bill devoid of any measures that target people smugglers, Motion X1 is the very minimum required. It is remarkable that stopping the boats is one of the Prime Minister’s five priorities, and yet it is not one of the Home Secretary’s strategic priorities for the National Crime Agency.

The most reverend Primate has made a compelling case in Motion Y1. The Government have set out in legislation the need for a climate change strategy. But, again, on one of the Prime Minister’s five top priorities, there is no need to set out in legislation the need for a strategy in relation to the movement of refugees and human trafficking. How can the Minister possibly say that that is a consistent position for the Government to take? We on these Benches will support both these Motions if the noble Lord and the most reverend Primate decide to test the opinion of the House.

[Lord Bellamy (Con)]

My Lords, if I may I will first deal briefly with Motion X1 and the National Crime Agency. It is important to remind the House that the Government have a dedicated multi-agency task force on organised immigration crime, which includes the NCA. The task force is committed to dismantling organised immigration crime groups internationally, including the criminal networks which facilitate people smuggling. In partial response, at least, to the noble Lord, Lord Blunkett, the task force is active in 17 countries worldwide, working with partners to build intelligence and prosecution capability.

The Government’s position, and indeed the position of the House of Commons, is that there is no need for further legislative measures to support the effectiveness of the National Crime Agency. That is the reason why the Government cannot support Motion X1. As regards Motion Y1, no one could have listened to the speeches tonight without recognising the power and sincerity with which they were made. The Government are all for reconciliation and accountability; that is a matter, in the Government’s view, for the normal political process. The House of Commons’ view, as expressed very recently and by a substantial majority, is that Amendment Y1 is unnecessary, although I am sure the sentiment behind it is shared by all of us.

[Lord Coaker (Lab)]

My Lords, I thank those who have spoken in this brief debate. I thank my noble friend Lord Blunkett for his support and one or two of the ideas he brought forward, which highlight the point I am trying to make. That I have tabled an amendment has caused my noble friend Lord Blunkett to put before your Lordships the idea of licensing the boats. That may be a good idea, there may be better ideas or there may be additional ideas, but at least that was an idea that came forward.

The Minister himself has given the House a couple of facts about 17 countries working together; that has never come up in our discussions on the Bill. We need to continue to ask questions of the Government and to keep making demands of them; through that, public policy will be improved. The very least we can do is for at least one part of the Bill to concentrate on the criminal gangs who are causing such misery, rather than on the people who suffer misery at the hands of those gangs. That is the purpose of my amendment, and I thank the noble Lord, Lord Paddick, for his support.

I finish with reference to the most reverend Primate the Archbishop of Canterbury. How refreshing it is to have a contribution which talks about how to deal with a common problem facing humanity, whatever our views or wherever we come from—actually looking at what we might do to come together to solve that common problem rather than seeking to divide us, as sometimes happens.

I finish with this: we either try to solve this problem as one country—where one country believes that it can solve the problem by tightening up its borders and pulling up the drawbridge—or we recognise that across the continent and the globe countless millions of people are moving and the number who are going move in the future is probably going to increase. Some of the poorest countries in the world take in more refugees than many of the richer countries. All that needs to be discussed, debated and looked at—not just in a debate in Parliament but over a period of time in which people can contribute. That should include not just people in the legislature but members of the public, organisations and people from different parts of the globe.

I thought that the most reverend Primate’s contribution was refreshing and is to be welcomed. I hope that as well as supporting my own Motion your Lordships see fit to support the Motion in his name. It deserves support. It allows us to look forward, up and out, rather than inward. For that, we are in his debt. I look forward to all of us supporting his Motion. I wish to test the opinion of the House on Motion X1.

00:05

Division 9

Ayes: 157

---

Labour: 80
Liberal Democrat: 48
Crossbench: 17
Independent: 5
Bishops: 4
Green Party: 2
Plaid Cymru: 1

Noes: 114

---

Conservative: 111
Crossbench: 1
Independent: 1
Labour: 1

00:17

Motion Y

Moved by

[Lord Bellamy]

That this House do not insist on its Amendments 104 and 107, to which the Commons have disagreed for their Reason 107A.

107A: Because the Amendments are unnecessary as the Government already works in collaboration with the UN High Commission for Refugees and others in response to refugee crises and in tackling human trafficking.

[Lord Bellamy (Con)]

My Lords, I have already spoke to Motion Y. I beg to move.

Motion Y1 (as an amendment to Motion Y)

Moved by

[The Archbishop of Canterbury]

At end insert “, and do propose Amendments 107B and 107C in lieu—

107B: After Clause 60, insert the following new Clause—
“Ten-year strategy on refugees and human trafficking
(1) The Secretary of State must prepare a ten-year strategy for tackling refugee crises affecting migration by irregular routes, or the movement of refugees, to the United Kingdom through collaboration with signatories to the Refugee Convention or any other international agreement on the rights of refugees.
(2) The strategy must include an evaluation of the factors driving migration by irregular routes and the movement of refugees to the United Kingdom.
(3) The strategy must also include provisions for tackling human trafficking to the United Kingdom and an evaluation of the factors driving demand.
(4) The Secretary of State must make and lay before Parliament a statement of policies for implementing the strategy.
(5) The first statement must be made within twelve months of the passing of this Act; and a subsequent statement must be made within twelve months of the making of the previous statement.
(6) A Minister of the Crown must, within three months of a statement under this section being laid before Parliament, move a motion in each House for the statement to be debated.
(7) “Ten-year strategy” means a strategy for the period of ten years beginning with the day on which preparation of the strategy is completed.
(8) “The Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol.”

107C: Clause 66, page 65, line 36, at end insert—
“(ba) section (Ten-year strategy on refugees and human trafficking);””

[The Archbishop of Canterbury]

My Lords, despite the gracious and kind words of the noble and learned Lord, Lord Bellamy, for which I am most grateful, I would like to test the opinion of the House. I beg to move.

00:18

Division 10

Ayes: 154

---

Labour: 79
Liberal Democrat: 48
Crossbench: 16
Bishops: 4
Independent: 4
Green Party: 2
Plaid Cymru: 1

Noes: 107

---

Conservative: 103
Independent: 2
Crossbench: 1
Labour: 1

House adjourned at 00.28 am.