European Court of Human Rights

Baroness Chakrabarti Excerpts

Wednesday 25th October 2023 Lords Chamber

[Lord Bellamy (Con)]

It is probably no surprise to say that I am not privy to the contents of the King’s Speech but. as far as I am best aware, the answer to the noble Lord’s question is no.

[Baroness Chakrabarti (Lab)]

My Lords, I remind the noble and learned Lord that his boss, the Lord Chancellor, appeared before the Justice and Home Affairs Committee of this House just before lunchtime. I urge noble Lords to read that evidence and take heart from it, and I urge the Minister to do so too. I hope his words will be taken forward as commitment to the ECHR, and that Section 3 of the Human Rights Act will not keep being disapplied from future Bills in this House.

[Lord Bellamy (Con)]

As ever, I am happy to take the advice of the noble Baroness and read the evidence very carefully.

Joint Enterprise: Young Black Men

Baroness Chakrabarti Excerpts

Thursday 19th October 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

I would like to press the Minister a little further following my noble friend’s question. The Supreme Court, no less, stated in 2016 that the law had been misapplied for 30 years. Leaving issues of race aside, that must mean that a lot of people who should not have faced life imprisonment have faced it. Will the Minister meet other interested noble Lords and campaigners, many of whom are mothers and sisters of those incarcerated, to consider whether for once legislators might assist in remedying judicial error, rather than the other way around?

[Lord Bellamy (Con)]

My Lords, it is relevant to emphasise that the Supreme Court in that case said that only if a substantial injustice could be established would the change in the law be relevant to any future appeal. Of course, I am very happy to meet anyone in the category the noble Baroness refers to.

Illegal Migration Bill

Baroness Chakrabarti Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

Moved by

[Baroness Chakrabarti]

152: Leave out Clause 53

[Baroness Chakrabarti (Lab)]

My Lords, the rule of law requires that Ministers are subject to the same rules as everyone else. This includes the possibility of discretionary interim relief in circumstances where courts believe that irreparable harm to one side in any litigation needs to be prevented while both parties await the final determination of an issue. Some noble Lords, including businesspeople and their lawyers, are perhaps more familiar with commercial than human rights litigation. However, the same principle applies. If I propose to dump or destroy the precious cargo entrusted to me because of alleged breaches by my customer, a court must obviously have the power to delay such drastic action pending crucial determinations of fact and law.

However, Clauses 53 and 54 would, first, completely oust the ability of UK courts to issue interim injunctions temporarily preventing a person’s expulsion to potential peril. Secondly, they would allow Ministers to ignore interim measures of the European Court of Human Rights, of the kind issued in the Rwanda case and those currently in place to prevent Russia executing Ukrainian prisoners of war. My Amendments 152 and 153 would remove these clauses, so as to respect domestic courts and the Strasbourg court. They are in no way wrecking amendments, as these courts only very rarely issue such measures against trustworthy, law-respecting jurisdictions such as we have been historically.

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

My Lords, the Bill establishes a bespoke claims and appeals process which provides for a person subject to the duty to remove to challenge their removal to a safe third country. The duty to remove will be temporarily suspended while consideration is given to any suspensive claim or appeal resulting from the refusal of that suspensive claim. That is of itself an effective remedy for those subject to the duty to remove, and these measures will ensure that all suspensive claims raised in response to a removal notice under the Bill will receive full judicial scrutiny.

Clause 53 is critical to the success of the Bill in preventing the United Kingdom’s domestic courts from granting interim remedies in relation to legal challenges which would prevent or delay the removal of a person who meets the removal conditions under Clause 2. Were other human rights claims and legal challenges to be made, they would be considered after a person has been removed. Clause 53 provides a necessary and effective safeguard against the endless merry-go-round of legal challenges that those with no right to be here use to thwart their removal.

Amendment 152 tabled by the noble Baroness, Lady Chakrabarti, would incentivise people to obtain injunctions or submit judicial reviews to delay or prevent removal, negating the carefully crafted and balanced provisions we have set out in the Bill, which I have just described. We cannot allow that to happen. The amendment would substantially undermine the Government’s ability promptly to remove those who enter the UK illegally, and our overall objective of stopping the dangerous small-boat crossings.

Amendment 153 similarly seeks to weaken the Bill by striking out Clause 54, which relates to interim measures of the European Court of Human Rights. Let me be clear: it is not the Government’s intention to ignore a Rule 39 interim measure. Indeed, Clause 54 provides a clear framework for a Minister to exercise discretion where a Rule 39 interim measure is indicated. That will mean that a Minister may suspend removal in response to a Rule 39 interim measure but, crucially, is not bound by UK law so to do. This will be dependent on the facts of each case.

As I have said before, the Government take their international obligations very seriously. Nothing in the clause requires the Government to act in breach of international law. I reassure the noble Baroness that reflections within the Strasbourg court are ongoing, and we are closely following the process. We are confident that they will lead to meaningful change.

The inclusion of Clause 54 in the Bill reflects our concerns about the interim measures process. We believe that there needs to be greater transparency and fairness in the process to ensure the proper administration of justice. We cannot allow our ability to control our borders to be undermined by an opaque process which does not give the United Kingdom Government a formal opportunity to make representations or appeal the decision. This process risks derailing our efforts to tackle the people smugglers and stop people from making the dangerous, illegal and unnecessary journeys across the channel.

For the reasons I have set out, I therefore invite the noble Baroness to withdraw her amendment and, if she is minded to test the opinion of the House on Amendment 152 or 153, I strongly urge noble Lords to reject the amendment.

[Baroness Chakrabarti (Lab)]

My Lords, I am so grateful to all noble Lords who have stayed. I say to all noble Lords that the length of debate does not indicate its importance. I am particularly grateful to the Minister for his indication that productive discussions are still in train between His Majesty’s Government and the Strasbourg jurisdiction; I take from that a suggestion to reinforce my suspicion that Clause 54 was always a negotiating position to attempt to improve the due process position in relation to interim measures in the Strasbourg court. On that basis, I want to allow the Government more time to proceed with those negotiations before Third Reading.

However, in relation to Clause 53 and my Amendment 152, on depriving His Majesty’s domestic judges of the inherent jurisdiction to grant interim relief, that jurisdiction does not come from any government or party statute; it comes from the common law. To deprive His Majesty’s judges of the ability to grant interim relief is anathema to our common-law system. With gratitude, again, to all noble Lords who stayed—perhaps even more to those who did not speak than to those who did—I would like to test the opinion of the House.

Illegal Migration Bill

Baroness Chakrabarti Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

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

[Baroness Chakrabarti (Lab)]

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

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

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

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

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

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

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

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

[Baroness Whitaker (Lab)]

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

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

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

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[Lord Bellamy (Con)]

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

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

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

[Baroness Chakrabarti (Lab)]

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

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

[Lord Bellamy (Con)]

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

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

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

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[Baroness Hoey (Non-Afl)]

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

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

[Baroness Chakrabarti (Lab)]

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

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

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

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

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

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

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[Lord Murray of Blidworth (Con)]

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

[Baroness Chakrabarti (Lab)]

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

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

[Lord Murray of Blidworth (Con)]

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

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

European Court of Human Rights: Rule 39

Baroness Chakrabarti Excerpts

Tuesday 6th June 2023 Lords Chamber

Asked by

[Baroness Chakrabarti]

To ask His Majesty’s Government what assessment they have made of the benefits of the jurisdiction of the European Court of Human Rights, provided by Rule 39 of the Rules of Court, to grant interim measures where there is imminent risk of irreparable harm to a claimant in an ongoing application.

[Baroness Chakrabarti (Lab)]

In memory of my late noble and learned friend Lord Morris, I beg leave to ask the Question standing in my name on the Order Paper.

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

My Lords, if I may, I associate myself with the tribute to the late Lord Morris.

The Government recognise that interim measures can be an important mechanism for securing individuals’ convention rights in exceptional circumstances. Nevertheless, the Government want the interim measures process to achieve a better balance between transparency, fairness and the proper administration of justice. Ministers, including the Prime Minister, have had constructive discussions with the Strasbourg court about reform. The court’s regular internal review of procedures began to look at the interim measures procedures in November 2022.

[Baroness Chakrabarti (Lab)]

As always, I am grateful to the Minister for his Answer. Does he agree with me that the current group of interim measures against the Russian Federation precluding the execution of prisoners of war is very important, and that, notwithstanding Russia’s current status outside the Council of Europe, anyone who thinks about ignoring those interim measures should think again? In the spirit of reciprocity, notwithstanding the discussions about process, will the Minister also think again about legislating to allow British Ministers to ignore interim measures from the Court of Human Rights?

[Lord Bellamy (Con)]

My Lords, if I may take the last question first, that issue will be explored in more detail in Committee when we get to Clause 53 of the Illegal Migration Bill. I remind the House that the Rule 39 power is a very important power, particularly in relation to the circumstances affecting Russia. However, it raises at least five quite difficult legal questions. First, what is the basis of the legal power? Secondly, what is the procedure with which the power is exercised? Thirdly, what is the competence, in the civil sense of the term, of the single judge? Fourthly, what is the effect in domestic law of such an order? Fifthly, what constitutes a breach of the order? None the less, the Government’s focus is on constructive and helpful discussions with the Strasbourg court on improving the process.

Illegal Migration Bill

Baroness Chakrabarti Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

In conclusion, the LGBT exclusions in the amendments I have referred to and co-signed are based on case law, Home Office country of origin information, Home Office country policy and information notes, and incontestable facts and information.

[Baroness Chakrabarti (Lab)]

My Lords, I rise in support of Amendment 53 tabled by the noble and learned Lord, Lord Etherton, and moved by the noble Lord, Lord Carlile of Berriew, also signed by the noble Lord, Lord Anderson of Ipswich. While I support everything said so far, I wish to draw the Committee’s attention to this amendment in particular and its constitutional importance, given the constitutional conceit of this whole Bill.

If I have said it before, I hope the Committee will forgive me: the conceit of this Bill is for the Secretary of State, via primary legislation, to tie her own hands and give herself a duty to do something that we believe to be unlawful. The reason for tying her own hands is to avoid the interference of the courts. That is, in essence, the conceit at the heart of the Bill. It goes a little further. The Home Secretary is tying her hands with a duty to remove people to a list of countries, but it is a list that she may add to. Now we are very permissive and the hands have become untied in a fairly fluid way when it comes to adding further countries to this list of supposedly safe countries in Schedule 1.

The contents of Schedule 1 therefore become quite important, hence the various submissions that are being made and the various amendments that are being tabled in Committee about this country or that country, not just as they are at this moment but, in a very difficult world in flux, regarding what may or may not happen in them in the future. The present Home Secretary, and Home Secretaries of whatever stripe of Government in the future, will have this duty to remove people to countries on a list which they may add to by secondary legislation. Therefore, the factors that they must consider as Home Secretary when adding to that list are incredibly important. I hope that the Committee agrees.

The factors for deciding whether a country is safe to add to the list are in Clause 6, particularly Clause 6(4), for those who can still pick up a Bill at this time of night:

“In deciding whether the statements in subsection (1)(a) and (b) are true … the Secretary of State … must have regard to all the circumstances of the country”.


Well, of course. That is a bit of a non-protection, because we would hope so, would we not? Secondly, the Secretary of State

“must have regard to information from any appropriate source (including member States and international organisations)”.

With respect, that is not enough. Therefore, it is worth being explicit about what has been done in Amendment 53, tabled by the noble learned Lord, Lord Etherton, and supported ably by the noble Lord, Lord Carlile of Berriew, which I support. They have beefed up that second limb, so that it is not just having regard to appropriate information. What does “appropriate information” mean—appropriate information as determined by the Secretary of State in this beautifully circular process? Instead, the Secretary of State must

“apply relevant decisions of courts and tribunals operating in the United Kingdom”.

There is a radical suggestion. The Secretary of State must have regard for the law and apply the law of the United Kingdom—the case law of our courts in this country—about the safety or otherwise of these countries that might otherwise be added to the list of the countries to which the Secretary of State will have a duty to remove people.

I almost choke on my words that this has to be put in law, but we are in a place of such disregard for our domestic courts. Therefore, the noble and learned Lord, Lord Etherton, and the noble Lord, Lord Carlile of Berriew, were quite right to insist at the very least that this should be clear in the legislation before a future Secretary of State can add further to this schedule of countries to which people must be removed by current and future Secretaries of State.

Perhaps more controversially—not for the Minister currently sitting opposite but to others, although I hope not—in addition to applying the law of this United Kingdom, as has become our custom as good members of the Council of Europe and under the Human Rights Act, the Secretary of State, before adding countries to this list, must

“have regard to decisions of the European Court of Human Rights”,

so please do not add further countries to this duty to remove unless you have applied the law of this land and had regard to the European Court of Human Rights. The Minister is a distinguished former judge. He is unique in this Committee and on the Benches opposite as an international lawyer, as opposed to being just any old lawyer, like me. Like the noble Lord, Lord Carlile of Berriew, I hope that he will see the good sense in the amendment tabled by the noble and learned Lord, Lord Etherton.

[Lord Scriven (LD)]

My Lords, I was not going to intervene in this particular group of amendments but, seeing that the two Front Benchers have agreed we are going to stay until 10.40 pm, and as I believe we should not be rushing through groups, I will add my bit to scrutinising the Government’s thinking on these particular amendments.

I have done a lot of work with groups in the UK who work with individuals who have sought asylum because of their sexuality, sexual orientation or gender identity. It is not a straightforward assumption that people come here and the first thing they do is claim asylum on the basis of their sexuality or gender identity. They have lived in countries where to trust the authorities with personal information about your sexual orientation or gender identity would mean either jail, persecution, discrimination or in some cases death.

So when a lot of people come here who are claiming asylum or wish to claim asylum on the basis of their sexual orientation or gender identity, they tend not to tell the authorities to start with. They tend to keep it private and very much to themselves. It is through a process of working with a number of non-government organisations and gaining trust during the interview process for asylum that, maybe on the fourth, fifth or sixth intervention with an official in the UK, they may start to open up. That is when many individuals who are claiming asylum as part of the LGBTQ+ community start to open up. They are secretive and they do not trust authority to start with.

This Bill gives them absolutely no way to explain why they are claiming asylum before the Government, under this Bill, make a decision that they could go to a country where they are in as much or more danger as in the country they have just come from in terms of their sexual orientation or gender identity. I am not clear how the Government come to the view that certain people, particularly gay males, transgender people, or people who are struggling with gender identity issues, are going to be able to go to a country of safe haven under the provisions of this Bill. If somebody is fleeing a country because of their sexual orientation or gender identity, they will maybe go to Gambia or Ghana or Jamaica. One only has to look at the Government’s own website to see travel advice that makes it very clear that these are not countries that you as an LGBT person should go to and be open, even if you are a tourist. The words that come out are “conservative” and “reserved”: “attacks” occasionally appear. So I just wonder how the Government have come up with this schedule, particularly with the process that a lot of individuals go through in terms of claiming asylum for sexual orientation or gender identity, knowing that it tends not to be something that is divulged instantly on the first interview, and then saying that people can go to countries, as I have suggested, and be safe. How would they know they are not sending somebody to a country where they are not safe?

I will move on slightly, because I was quite intrigued by the Government’s website on travel advice. With quite a lot of these countries, the Government’s own advice is that some of them are quite violent, with “express kidnappings” referred to in certain countries. If noble Lords do not know what an express kidnappings is, because I did not, it is literally that somebody will come, be able to determine that you are not from that country, assume that you are a foreign national, kidnap you instantly off the street, and then determine who your relatives are and where you have come from, and use you as a potential source of income, including potentially injuring you and in some cases killing you. On the Government’s website, with some of the countries on this Schedule 1, express kidnappings are there.

--- Later in debate ---

[Lord Bellamy (Con)]

It will remain a question of fact in each case and the examples of relevant harm are set out in Clause 38(4), which refers to

“death … persecution … torture … inhuman or degrading treatment or punishment”

and where onward removal would raise a risk of

“real, imminent and foreseeable risk of … harm”.

If that in practice amounts to a situation in which you could not send a gay person back to that country, that would be a decision for the tribunal.

[Baroness Chakrabarti (Lab)]

I am so grateful to the Minister for responding with his characteristic courtesy and patience. I think I can help him, because I think the problem here arises from the Government own cake-eating, if I can put it like that. The general proposition in the Bill is that we will now decide on a blanket basis that people are to be removed, regardless of their circumstances, because of the means of their arrival, not because of the circumstances of their past and their persecution. Fair enough; that is the thinking behind the Bill. Then the Government say, “Here is the schedule of safe countries”, again on a blanket basis. Then the Government say, “But only for men”—so they have already adopted the approach that there are some countries that are safe for men but not for women. But then when my noble friends and other noble Lords in the Committee say, “But gay people are a vulnerable group in many parts of the world, just as women are”, the Minister is, I think, forced into the Government’s position of saying, “But women are not a precedent”.

That logic is not standing up to scrutiny, in this Committee at least, so I hope that, after Committee and before Report, the Minister might just consider that issue of gay people, or LGBT+ people, in particular. We all know, in this Committee, that just as there are some countries that may be safe for men but not women, there are many countries that are not safe for queer people either. Rather than playing on this sticky wicket, which he, with his characteristic grace, handles with great aplomb, perhaps before Report, the Government could think again.

[Lord Bellamy (Con)]

My Lords, the Government will of course consider that, as we try to consider everything that is said in this House, before Report. I simply reiterate that under Clause 5(3)(d), it still has to be

“a country or territory to which there is reason to believe P will be admitted”—

and that is probably not very likely to be satisfied in the particular countries we are talking about, such as Ghana, for example. Having responded to the noble Baroness, Lady Chakrabarti, the Government will of course consider the position.

Prisons: Education

Baroness Chakrabarti Excerpts

Thursday 23rd March 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords—

[Baroness Chakrabarti (Lab)]

My Lords—

[Baroness Williams of Trafford (Con)]

My Lords, it is the turn of the noble Baroness, Lady Fox.

Independent Public Advocate

Baroness Chakrabarti Excerpts

Thursday 2nd March 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, the noble Lord, Lord Carlile, makes a very powerful point. I think it is related to all the issues we have in this particular area, in relation to legal aid, costs to the system, legal aid for inquests and other inquiries. The principle of proper representation is accepted, I am sure, on the part of the Government. How exactly we implement it and where the funding comes from is a matter for further discussion, I hope on a consensual and collaborative basis.

[Baroness Chakrabarti (Lab)]

In the same spirit as that question from the noble Lord, Lord Carlile of Berriew, I have a concern about equality of arms in terms of representation before inquests and inquiries across the piece. I understand concerns about spiralling costs in some of these matters, but it seems to me that often, particularly in inquests but also in inquiries, public bodies are heavily represented. It seems totally iniquitous that public money will be spent with no upper limit to represent those public bodies that may be in the frame for negligence or wrongdoing, but that there is only exceptional case funding and tighter caps on the victims and their families. Is this perhaps something that the Minister, in the collaborative tone that he has adopted, might think about? Might that potentially be within the scope of the Bill itself, or at least the package that should support this enterprise?

[Lord Bellamy (Con)]

I thank the noble Baroness, Lady Chakrabarti, for that question. The question of equality of arms is very much on the Government’s minds at the moment. The point has also been raised by Sir Bob Neill and the Justice Committee that there should be parity and equality of representation. We should do something to level up the ability of families who are up against what appears the be the apparatus or full panoply of the state, as part of levelling up in general. I think that the IPA is an important step in that direction; exactly how we ensure that kind of equality of arms, how it is funded and how we go about it, is something I look forward to having further discussion with all parties about.

Probate: Waiting Times

Baroness Chakrabarti Excerpts

Thursday 8th December 2022 Lords Chamber

[Lord Bellamy (Con)]

My Lords, first, I apologise to my noble friend and all those affected by unacceptable delays in the probate registry. Secondly, active steps are being taken to fix the problem. Some 76% of all applications are now made digitally. The problem arises in so-called stopped cases where an element, such as a document, is missing or a query arises. That is where communications have been less than perfect. The registry has now recruited more than 100 staff to make sure that phone calls and emails are answered properly and that the web chat facility, which deals with around 200 calls a day, works well. My colleague in the other place, Minister Freer, is monitoring this closely. I am told that telephone answering times have now come down to less than 10 minutes. We are determined to ensure that that progress continues. I fully accept that, in a time of bereavement, the service in the probate registry must be beyond reproach.

[Baroness Chakrabarti (Lab)]

My Lords, will the Minister join me in congratulating his noble friend, the noble Baroness, Lady Meyer? This is not the first time in a distinguished career in public service that she has converted personal grief into public campaigning and courage on behalf of other people. I am very grateful for her intervention. The justice system is creaking under the weight of years of austerity. Digitalisation may be part of the answer but it is not the whole answer when there are human beings involved. Perhaps the Minister might meet his noble friend to get some direct experience and advice for his department moving forward.

[Lord Bellamy (Con)]

I fully associate myself with the noble Baroness’s remarks. It is completely right that these issues should be raised, and I congratulate my noble friend Lady Meyer on raising them. I have already met her to discuss this problem. In fairness to the probate registry, I simply point out that we are still enmeshed in the aftermath of Covid. Excess deaths are currently running 13% above the five-year average. The first half of 2022 saw 16,000 extra applications above the same period in 2020. So there is a challenge here. I assure your Lordships that, as far as I am concerned, this issue is being monitored closely and everything is being done to correct it.

Rape: Prosecutions and Support

Baroness Chakrabarti Excerpts

Tuesday 29th November 2022 Lords Chamber

[Lord Bellamy (Con)]

The Government hope to bring forward the victims Bill as soon as possible but have no present plans to change the legislation on violence against women or, indeed, anybody else.

[Baroness Chakrabarti (Lab)]

My Lords, many women are facing a crisis of trust and confidence in the criminal justice system at the moment. I appreciate that the Minister is relatively new to this arena. However, there are people who believe that rape has effectively been decriminalised in our jurisdiction. That is a very serious matter. Would he consider meeting me, perhaps the noble Baroness, Lady Newlove—who is not in her place—other interested Members of your Lordships’ House and victims’ groups, including the Centre for Women’s Justice, to hear their experience before taking this work further forward?

[Lord Bellamy (Con)]

I would certainly be prepared to meet the noble Baroness and others and, on that occasion, take everyone through the steps that we are taking to combat this problem.