Illegal Migration Bill

Baroness Butler-Sloss Excerpts

Consideration of Commons amendments
Monday 17th July 2023 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, when the House last debated this issue, the noble Lord, Lord German, stressed the risk to the public purse as thousands are locked up while the search goes on for further Rwandas to send them to. I will not repeat his arguments. The House found them convincing and supported his Motion by a majority of 61; nor need I remind the House that neither my Motion nor the Motion tabled by the noble Lord, Lord German, asks that those locked up for over six months be granted asylum. We ask simply that their cases be heard, as the refugee convention requires. Nothing in the Motion pre-judges the asylum adjudication procedure. It simply rules out the possibility—maybe the probability—of limbo, of extended inadmissibility gagged and incarcerated behind barbed wire.

I will make only three points, two new and one sadly familiar. First, the Minister, in arguing against the Motion moved by the noble Lord, Lord German, advanced only one argument—which he made again tonight. He said that it would simply encourage people to game the system, drawing things out to reach the six-month cut-off date. I suspect that the threat of being sent to Rwanda might be sufficient reason to seek a delay. However, in any case, the Minister’s point is met in the new version of the amendment. With all due respect to him, the change is substantive. The final subsection, proposed new subsection (3C), is new and means that nothing that a detainee does can advance the date on which the Government would have to countenance and begin to consider his application for asylum. Gaming the system would not be possible. If the Government’s concern was real, their objection is really met.

Secondly, the reason that the other place gave tonight for rejecting the amendment tabled by the noble Lord, Lord German, and so many other amendments, was that it is contrary to the purpose of the Bill to prevent and deter unlawful migration. However, willing the end does not and cannot mean willing all and every possible means. Capital punishment might be an effective deterrent, as might tarring and feathering or hanging, drawing and quartering. Willing the end does not absolve Parliament from discriminating among possible means, distinguishing the acceptable from the unacceptable. Sine die incarceration, case unheard, surely falls on the wrong side of the line.

My third and final point is that the underlying issue here is simple and sadly familiar. Our debate has not been just about conventions and commitments. It has been about people, about common humanity. It is about whether the House and the country think that locking people up sine die is a fair and reasonable way to treat those fleeing oppression, famine and war—locking them up and denying them any chance to explain why they seek sanctuary here and what it is that they fear back home. Doing that was in no party’s election manifesto. The House has so far taken the view that it is not what the country should do. I hope that we shall maintain that view. I beg to move.

[Baroness Butler-Sloss (CB)]

My Lords, I shall speak to Motion D1. I remind the House that this issue was raised at an earlier stage, either on Report or in ping-pong, by a Member of the Conservative Benches in this House. I also remind the House that how the law will be applied is not what the Minister says; it is what the law actually states. We are hearing from the Minister that in relation to unaccompanied children it will not be used very much, but that is absolutely not good enough. If the law allows unaccompanied children to be detained for well over 28 days—that is, unless the child gets to the tribunal, and how will the child know that he or she is to apply to the tribunal?—then under this law they could remain there indefinitely.

I have four points to make. First, there is a risk to the welfare of the child of this indefinite detention instead of the present 24-hour maximum—a very considerable increase. The Government talk about child-appropriate detention. I just wonder what that really means.

I am afraid that I have banged on to this House again and again about the Children Acts, but I am particularly concerned about the impact of the Children Acts on Home Office detention if the detention goes beyond just two or three days, because there is no parental responsibility. What happens, as a Conservative Peer said much earlier, if a child suffers a serious medical emergency? There is no one, particularly not in the Home Office, with the right to sign the consent form for a child. They would have to go to the court to get an emergency protection order for the child to be able to receive proper medical attention. It would be quite a good idea if the Home Office remembered that. I said it to it earlier, and so did the Conservative Peer, but it does not seem to have put that in its mind.

Secondly, I worry about the Department for Education. To what extent does it know the implications of the Bill? I get the impression that the members of the DfE in this House do not really have any knowledge of it.

Thirdly, there may be disputes between local authorities and the Home Office over a child being removed from local authority care under the Children Acts and taken into detention. What happens if there is a care order where a judge has ordered that a child should be living in a particular place under the care of a local authority? Is the Home Office really going to move the child where there has been a judicial order over where the child lives?

Fourthly, although I know this is not necessarily popular with many people, Article 5 of the human rights convention talks about detention. In due course I would like to test the opinion of the House.

[The Lord Bishop of Bristol]

My Lords, I shall speak to Motion E1. This Motion, as with Motion D1, concerns vulnerable children being deprived of their freedom—in this case, those accompanied children. I am disappointed that, regardless of the strength of opinion across this Chamber, the Government are still not proposing to set limits on the detention of children in the Bill, whether they are accompanied or unaccompanied. Despite the comments of the Minister about the possibility of fake families earlier in the debate, I wish to press the point.

My amendment, as originally tabled by the right reverend Prelate the Bishop of Manchester last week, seeks to address and bring forward provisions for children within families. It was the Prime Minister himself who stated that it is not the intention of the Bill to detain children. This amendment seeks to go some way towards ensuring that commitment for all children. It would ensure that for families with children, the children could be detained for no longer than 120 hours—five days—or for no longer than seven days, with ministerial approval. It presents a proportionate response to the possibility of unlimited detention of children that is a compromise on what is in the 2014 Act. Given that the Government intend to deport those meeting the conditions of Clause 2 swiftly, It would not hinder that objective.

--- Later in debate ---

Moved by

[Baroness Butler-Sloss]

Leave out from “House” to end and insert “do insist on its disagreement with the Commons in their Amendments 36A and 36B, do not insist on its Amendments 36C and 36D, and do propose Amendments 36E and 36F in lieu of Amendments 36C and 36D—

36E: 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 or for more than a period of 96 hours 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).(2EA) Where a person is detained under a provision of this Act 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 a period of 72 hours or less than 96 hours 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), that apply in relation to the detention of an unaccompanied child under sub-paragraph (2C).”

36F: 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 subsection for more than a period of 72 hours or for more than a period of 96 hours 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).(2CA) Where a person is detained under a provision of the Immigration Act 1971 and then (without being released) under a provision of this Act, 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 a period of 72 hours or less than 96 hours 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), that apply in relation to the detention of an unaccompanied child under subsection (2A).””

[Baroness Butler-Sloss (CB)]

I would like to test the opinion of the House.