Rwanda Asylum Partnership

Baroness D'Souza Excerpts

Wednesday 19th October 2022 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I remind noble Lords that Rwanda is a state party to the 1951 UN refugee convention and the seven core UN human rights conventions. It is also worth pointing out that, in September 2019, the African Union, the Government of Rwanda and the UNHCR signed a memorandum of understanding to set up an emergency transit mechanism to evacuate refugees and asylum seekers out of Libya. The EU has provided support and donated €12.5 million to the ETM through its emergency trust fund. The UNHCR also stated, in a 2020 press notice, that

“Rwanda has been welcoming refugees for over two decades … The country offers a safe and protective environment to all asylum seekers and refugees.”


There seems to be a degree of inconsistency in the UNHCR’s opinion.

[Baroness D'Souza (CB)]

My Lords, I have just returned from a parliamentary visit to Rwanda. Could the Minister clarify which authority in Rwanda would be responsible for determining refugee asylum status? What guarantees are there that the 1951 convention criteria will be faithfully followed? I say this simply because, during this visit, President Kagame said that he was looking for new skills and talents among the refugees or asylum seekers who might be arriving in Rwanda.

[Lord Sharpe of Epsom (Con)]

As the noble Baroness is aware, the foundation for this is a memorandum of understanding that, it is strongly believed, covers the various points that she made. I cannot answer precisely who is responsible at the Rwandan end, but there are teams of Home Office personnel in place who will also monitor progress.

Queen’s Speech

Baroness D'Souza Excerpts

Thursday 12th May 2022 Lords Chamber

[Baroness D'Souza (CB)]

My Lords, I would like to take the opportunity of this House’s humble Address to the Queen’s Speech to touch on the issue of our constitutional monarchy and its role in limiting—or not—the power of the Executive. As we all know, the time cannot be too far away when the nation will have to witness the death of our beloved Queen. This distressing event will, however, allow us the first opportunity since 1952 to consider, as a nation, what kind of monarchy might be appropriate in the 21st century and how far this should become a matter of public debate.

At present we have a constitutional monarchy, a role that the Queen has followed to the letter. Her Majesty has certain prerogative powers which theoretically exert a check on the executive branch of our political system and specifically on the Prime Minister as the head of an elected Government. It is a constitutional principle that these prerogative powers are rarely employed and the Executive remain effectively unchecked. If a future monarch chose to resuscitate these prerogative powers, there could be a constitutional crisis. Even were this not to be the case, should we as a nation automatically retain the status quo, or should we discuss and consult on the role of the Head of State in the current political settlement?

There have been moves in recent years towards a more slimmed down monarchic system, as evidenced, for example, by the Prince of Wales’s stated intention to work towards this and the most recent decision that only working royals should appear on the royal balcony during the Diamond Jubilee celebrations. However, as a result of our largely unwritten constitution consisting of norms and conventions, there is still a lack of clarity on the role of the monarch as Head of State. The newly set up Commission on Political Power, of which I am a co-founder, intends to examine this particular aspect in some detail. The alternatives that will be considered include everything from the status quo to a presidential system. For example, although the monarchy has evolved in small steps over hundreds of years, the hereditary principle of primogeniture remains despite there being several alternatives.

Another alternative would be a purely ceremonial monarchy. The ceremonial role of the monarch and senior royals is not only greatly admired by millions but adds to the gaiety of nations and swells the UK Treasury through tourism and trade. The patronage of worthy causes is invaluable in raising funds and influence. The sense of unity and continuity derived from the monarchic traditions—the Christmas speech, the conferring of honours, state occasions such as the Trooping of the Colour—cannot be overestimated. But should a Prime Minister seek in future to push the boundaries of the UK political system, or should a future monarch wish to intervene in legislation that affects his or her financial or other interests, only a constitutional court or some such body could effectively resolve a crisis.

With a purely ceremonial monarchy, questions would also arise as to who should invest a new Prime Minister or read the Government’s speech at the State Opening of Parliament—or, indeed, whether the monarch should read that speech at all. How would the work of this ceremonial role be funded, and who would set the limits? To what extent would this refashioned monarchy be accountable to the public, and indeed by what mechanisms?

As with all discourse of this kind, the UK constitution is a delicate system of intertwined shreds and patches—easily upset and resulting in unintended consequences. The tendency to keep things as they are is strong, with reason, as is the desire to proceed with extreme caution and delay. That said, many of us were shocked in 2019 when the Prorogation called by the Prime Minister, in the name of the Queen and ratified by her, was ruled unlawful. Maybe now is the time to at least put the question of what a modern, 21st-century UK monarchy could look like into the public arena.

Nationality and Borders Bill

Baroness D'Souza Excerpts

Consideration of Commons amendments
Tuesday 26th April 2022 Lords Chamber

Moved by

[Baroness D'Souza]

At end insert “and do propose Amendments 4J and 4K in lieu—

4J: Clause 9, page 12, line 13, leave out subsection (5) and insert—
“(5) Where a pre-commencement deprivation order is invalid due to a failure to comply with the duty under section 40(5) of the 1981 Act, and the Secretary of State seeks to make a new deprivation order in respect of the person affected by the invalid order—
(a) the Secretary of State shall comply with the provisions set out in Schedule 4A to the 1981 Act, and
(b) subsections 40(5D) and 40A(2A) of the 1981 Act apply.”

4K: Clause 9, page 12, line 20, leave out subsection (7)”

[Baroness D’Souza (CB)]

My Lords, needless to say, I along with many others am deeply disappointed with the Commons’ decision to reject the amendment that we tabled on Clause 9. In effect, the Government now seek to maintain the legal fiction that previous deprivation orders without notice continue to be valid. This immediately puts many who are suspected of having been trafficked, including women, at risk of return to countries where they may be subjected to torture and/or other inhumane and degrading treatment.

The amendment simply sought to remove the Government’s power to hold to decisions and actions to deprive, without notice, citizenship orders subsequently declared unlawful by the courts. It remains unclear to me why, if the Government accept that safeguards are necessary—as evidenced by the amendments tabled by the noble Lord, Lord Anderson, and accepted by the Government—these same safeguards do not apply to all deprivation orders.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken succinctly to these groups of amendments. Before concluding, I will directly address the point from the noble Lord, Lord Coaker, about the facilitation offence. I can confirm that we do not intend to refer people for prosecution except in egregious cases. We will assume that they are telling the truth and acting in good faith, unless we can disprove it beyond reasonable doubt.

The noble Lord also asked about modern slavery, public order and those forced into criminality. As I said in my opening speech, we recognise that individuals who have prior convictions may be more frequently targeted by exploiters. That is why we are taking a proportionate approach to identifying those who are of public order concern. Trained decision-makers will then carefully consider each individual case and take into account mitigating factors. These will include the nature and seriousness of any offence, the time that has elapsed since the person committed such an offence, whether the offence was committed as part of an individual’s exploitation and therefore the level of culpability attached, and whether an individual is assisting or co-operating with a relevant investigation or prosecution effort.

I think I have addressed the points that noble Lords have made. Without further ado, I hope that noble Lords will not press their amendments.

[Baroness D'Souza (CB)]

My Lords, it is with a great regret that I beg leave to withdraw Motion A1.

Motion A1 withdrawn.

Motion A agreed.

Motion B

Moved by

Nationality and Borders Bill

Baroness D'Souza Excerpts

Consideration of Commons amendments
Monday 4th April 2022 Lords Chamber

[Baroness D'Souza (CB)]

My Lords, my Motion B1 also falls in this group. I start by saying how welcome the safeguarding concessions that have been or will be incorporated into the Bill are. But there is still unfinished business. Very simply, my Motion seeks to delete the retained subsections (5) to (7) on the grounds that these clauses maintain a legal fiction that deprivation orders issued without notice continue to be valid, despite court rulings to the contrary. It is accepted by the courts that it is unjust to strip a person of his or her citizenship and all the associated rights without ever providing notice. Retaining subsections (5) to (7) seeks to overturn that ruling by legislative fiat. Instead of invalidating previous deprivation orders that were made unlawfully, the Government appear to wish to apply retrospectively these earlier orders.

The Minister, who was kind enough to write to me at an earlier stage of the Bill, justified these orders by pointing out that the proper functioning of the immigration system cannot be hijacked because an individual chooses to remove himself or herself from contact—or where to make contact might reveal sensitive intelligence. The Minister said that we cannot be in a position where we can never deprive someone of citizenship simply because it is impractical. Since then, the Government have accepted in principle amendments tabled by the noble Lord, Lord Anderson, which the Government assert achieve the right balance between safeguards and security.

I respectfully suggest that this is not what my amendment is about; rather, it is about holding to decisions and actions on orders to deprive citizenship without notice that have subsequently been declared unlawful. Thus the safeguards now included, or to be included, in the Bill will not affect deprivation orders made before commencement. This appears to be unjust. It is also puzzling. If the Government accept that safeguards are necessary, why not apply them to all deprivation orders? Section 40 of the British Nationality Act 1981 sets out individuals’ statutory right to be notified when being deprived of citizenship. The Government’s disregard for this right led to legal rulings, including from the Court of Appeal. Therefore, the retention of subsections (5) to (7), which we are discussing today, could be seen as bringing the rule of law into question. It most certainly creates two tiers of citizens subject to deprivation orders: those who benefit from the so-called Anderson safeguards and those who do not—namely, those still under pre-commencement orders.

I am not arguing, and have never argued, against deprivation orders, which may be acutely necessary. Process is the issue. Excluding the subsections in my amendments would not deny the Government the right to reconsider their earlier decisions together, in some cases, with the benefit of new evidence, particularly that which involves evidence of human trafficking, and to remake deprivation orders where necessary.

Removal of subsections (5) to (7) would immediately achieve two desirable and extremely important outcomes: it would bring the Government into conformity with the rule of law and it would extend proper safeguards to those who continue to be at risk from previous unlawful actions.

[Lord Murphy of Torfaen (Lab)]

My Lords, I shall speak to my Motion T1, which refers to the electronic travel authorisations to which the Minister referred. The amendment would make anyone who was legally resident in the Republic of Ireland able to travel to Northern Ireland without such an ETA. This issue was discussed both in Committee and on Report. The House agreed with those of us who argued that this was wrong, but of course the House of Commons has not. The arguments remain the same. I was hopeful that the Minister, who I am sure will have spoken to her colleagues at the Northern Ireland Office, would make some concessions on this matter. However, the dead hand of the Home Office is there again.

This troubles me for a number of reasons. First, it jeopardises strand 2 of the Good Friday agreement, which refers to north/south co-operation between the two parts of the island, which was vital when the agreement was negotiated. It affects tourism, as the Minister referred to. She said that tourism was a good thing. We all agree with that, as do all the stakeholders, but the Government have to do something to ensure that it remains a good thing. If we charge €14 for an ETA—with the bulk of American tourists, for example, coming from Dublin to go to the north of Ireland to enjoy the great pleasures of tourism there—that is going to be a question of jeopardy as well.

In addition to that, and perhaps more significantly for those who live in both the north and the south of the island, there is the issue of health. Many people in Northern Ireland and in the Republic travel the border to go to the best place for the particular ailment or disease from which they are suffering. Particularly up in the north-west of Ireland, the co-operation between the two Governments is immense. I would be troubled if someone who was not necessarily an Irish or British citizen but was legally resident in the Republic was not able to take advantage of those co-operation decisions by both Governments.

The other issue here is work. It is quite possible that someone could work in the Republic and live in the north, or vice versa, who was not an Irish or British citizen but was legally in the Republic because of their membership of the European Union .

Secondly, there is an issue with regard to the spirit of the Good Friday agreement, which in my view has been jeopardised by this government decision. The border is different in Ireland; it is not like any other border in the European Union. Although I do not normally read tweets, I read one the other day from the noble Lord, Lord Frost, who had got worked up about this issue and was talking about the fact that the Irish Government did not seem to think this was an international border between two countries. What does he think we were doing for year after year when we negotiated the Good Friday agreement and the St Andrews agreement? We were dealing with the border as part of the peace process. There are 300 crossings along that border with no apparatus to check people, yet now we get a completely different way in which people must apply to the bureaucrats in order to cross it.

The border is a great symbol on both sides of the community in Northern Ireland, which is why the border being put down east/west has caused such a fuss. But the reason why this proposal by the Government is simply daft is that it is unenforceable. The Minister has told us what the Marshalled List states and says the reason why these ETAs are essential is to stop people of interest or people who are risky, whether they be spies, terrorists, criminals or other ne’er-do-wells, from crossing the border. Does she really think that those people are likely to pay €14, fill in an ETA form and then cross the border? Of course not. It is nonsense because it cannot be enforced. If the border had apparatus at all 300 crossings then that might be possible, but it does not.

Some of your Lordships who are as old as me will remember Gilbert Harding. He once had to fill in a form to apply for a visa to go to America, and on the visa form was the question: “Is it your intention to undermine the Government of the United States?” His answer was “Sole purpose of my journey”. That is in a way similar to this. At the end of the day, it is unenforceable, impractical and unnecessary, and it jeopardises the relationship between two countries. Ireland and the United Kingdom are the joint guarantors in international law with regard to the Good Friday agreement. The noble Baroness knows that the Irish Government are very upset about this for all sorts of reasons; there have been discussions between Ministers even at the British-Irish Intergovernmental Conference, set up by the Good Friday agreement. Is it really worth jeopardising our relationship—which has been bad enough as it is over the last number of years—with this petty and silly proposal by the Government? I would like the Government to change their mind, but I am not hopeful.

--- Later in debate ---

Moved by

[Baroness D'Souza]

At end insert “and do propose Amendment 4G to the words so restored to the Bill—

4G: Page 12, line 13, leave out subsections (5) to (7)”

[Baroness D'Souza (CB)]

The Minister talks about numbers and the D4 case, but there is a principle at stake here: illegal orders have been made and there is no recourse for those affected pre-commencement of this Bill. That is unjust and must be dealt with. I beg to move.

Police, Crime, Sentencing and Courts Bill

Baroness D'Souza Excerpts

Consideration of Commons amendments & Lords Hansard - Part 1
Tuesday 22nd March 2022 Lords Chamber

It is not that I want reassurance from the Government. If anything, I want us to have a pause on this. It has become fashionable to feel that you have to say such things. I am as concerned as anyone about the problems with prosecutions and convictions for rape. These are discrete and important issues for us to deal with. Under the auspices of concern about misogyny, we have to be careful. If you oppose acting—or being seen to act—in relation to misogyny, I really do not want to be told that it means one is cavalier about violence against girls and women. Of course I am not cavalier about that; why would I be? But this is not a rampaging issue that threatens everyone, and it needs to be dealt with proportionately and with some sensitivity, rather than under a banner headline.

[Baroness D’Souza (CB)]

My Lords, in defending freedom of expression, which often includes offensive speech, various criteria are maintained, which largely concern the context in which the speech occurs. There are two particular aspects. The first is whether the hate speech, misogynistic or otherwise, is able to be avoided. Is there a way in which the individual can avoid the speech, for example by not turning on the radio or their text messages, or whatever it might be? The second is one that has already been alluded to by the noble Baroness, Lady Fox. It is the extent to which there is a direct relationship between hate speech, misogynistic speech, and actual harm coming to an individual woman.

The noble Baroness, Lady Kennedy of The Shaws, who is to be commended on almost everything that she does, talked about protecting thoughts. In a way, what one is doing is contradicting that by saying that if someone is thinking about delivering offensive speech that will automatically, if it is expressed, lead to action. I think there is a tiny bit of confusion here. Although I will support the amendment, there is an element of curtailing freedom of speech that we ought to be mindful of.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, recently I was going home late and I got into a cab and was chatting to the cabbie. At some point he said, “Oh, you posh young birds”. It was so inappropriate on so many levels that I did not know what to do. I did not tip him, of course. It struck me that it was not necessarily offensive—but I did object to it.

I have heard today two incredibly powerful speeches in favour of the Motion, from the noble Lord, Lord Russell, and the noble Baroness, Lady Kennedy. I do not understand why the Government have not heard this message. It is not coming from just these two people; it is coming from millions of women who experience misogyny and really do need protection. It is not enough to say, as the police often do, “Don’t wear short skirts, don’t go out after dark and don’t drink too much” and things like that. This is on a completely different level. It is about protecting women who cannot protect themselves, so I hope that the Government are listening.

I noticed that the noble Lord, Lord Wolfson, was writing very seriously during these speeches. I hope he was making prestigious notes about what was said and how important it was, and I hope the Government are listening.

Nationality and Borders Bill

Baroness D'Souza Excerpts

Report stage
Tuesday 8th March 2022 Lords Chamber

Moved by

[Baroness D'Souza]

84B: After Clause 78, insert the following new Clause—
“Afghan Relocations and Assistance Policy
(1) Within 30 days of this Act being passed, the Secretary of State must amend part 7 of the Immigration Rules on the Afghan Relocations and Assistance Policy (“ARAP”) in accordance with subsections (2) to (11).(2) The Secretary of State must amend paragraph 276BB3 to specify that a person falls within that paragraph if—(a) at any time on or after 1 October 2001, the person—(i) was directly employed in Afghanistan by a UK government department, or(ii) provided goods or services in Afghanistan under contract to a UK government department (whether as, or on behalf of, a party to the contract); and(b) because of that employment or provision of goods or services, the person’s life or safety is at real risk.(3) The Secretary of State must revoke paragraph 276BB4.(4) The Secretary of State must amend paragraph 276BB5 to specify that a person falls within that paragraph if the person meets conditions 1 and 2 and one or both of conditions 3 and 4, as set out in subsections (5) to (8). (5) Condition 1 is that at any time on or after 1 October 2001, the person worked in Afghanistan alongside, in partnership with or closely supporting and assisting a UK government department or for a British-based organisation or institution founded by, funded by or otherwise connected to the UK government.(6) Condition 2 is that the person, in the course of that work, made a substantive and positive contribution towards the achievement of—(a) the UK government’s military objectives with respect to Afghanistan,(b) the UK government’s national security objectives with respect to Afghanistan (and for these purposes, the UK government’s national security objectives include counter-terrorism, stabilisation, counter-narcotics and anti-corruption objectives), or(c) the UK government’s human security objectives with respect to Afghanistan (and for these purposes, the UK government’s human security objectives include interventions to reduce violence, ensure basic security and promote human rights and the rule of law).(7) Condition 3 is that because of that work the person is or was at high risk of death or serious injury.(8) Condition 4 is that the person holds information the disclosure of which would give rise to or aggravate a specific threat to the UK government or its interests.(9) The Secretary of State must amend paragraph 276BB2 to reflect subsections (2) to (8) of this section.(10) The Secretary of State must insert into the Immigration Rules a route for additional family members of locally employed staff to apply in exceptional circumstances for relocation, and ensure this route is provided on terms that are no less favourable than those contained in the Home Office’s Additional guidance on the eligibility of additional family members under the Afghan locally employed staff relocation schemes, published on 4 June 2021.(11) The Secretary of State must specify in the Immigration Rules that any decision to exclude a person who would otherwise be eligible for the ARAP scheme must be made in accordance with the exclusion criteria set out in Article 1F of the 1951 Refugee Convention, and provide independent and transparent due process guarantees in relation to any exclusion decision, including impartial decision makers, disclosure of relevant information and evidence and rights of appeal.”Member’s explanatory statement
This new Clause would expand eligibility for ARAP by amending the Immigration Rules. It would insert into the Rules a relocation route for additional family members, which can be no less favourable than the current Home Office guidance, and limit the basis on which persons, who would otherwise be eligible for relocation under ARAP, can be excluded from the scheme.

[Baroness D'Souza (CB)]

My Lords, I return to the Afghan relocations and assistance policy. This stand-alone amendment seeks to protect and indeed make welcome those Afghan citizens who worked with UK bodies to promote democratic policies and, as a result, are in danger of retaliation from the current Administration in Afghanistan. Most of us will have heard terrifying stories of young women and, by extension, their families hiding in appalling circumstances simply because they are known to have worked with British organisations, including the British Council, the BBC and other non-governmental organisations.

Recent reports by reputable bodies not only indicate public support for Afghan resettlement but cite many distressing case studies of the rejection by ARAP of those who played a central role of advancing the UK’s military and security objectives. This amendment seeks to revise the Immigration Rules in three main ways: by broadening and clarifying the eligible criteria; by narrowing the exclusion criteria; and by inserting into the Immigration Rules a route for the relocation on additional family members. This amendment also brings the Immigration Rules into conformity with the obligations due as a signatory to the 1951 UN refugee convention.

Despite many brave words, the current schemes for rescuing Afghan citizens are limited, in many cases exclusionary and somewhat duplicitous, in that the resettlement offer has been gradually reduced, leaving many hundreds if not thousands at risk, purely because of their association with the UK. We have a moral duty; we chose to go into Afghanistan with many different aims and goals, and often these goals were implemented by Afghans who served us well and courageously. We need to honour our commitment to protect them, as well as our international reputation as a fair and decent country. I might add that, if this amendment is accepted, it will also benefit Ukrainian refugees, who will no doubt continue to seek refuge in the UK for some time to come. I beg to move.

[Baroness Coussins (CB)]

My Lords, in supporting Amendment 84B, I declare my interest as a member of the MoD’s former assurance committee on locally employed civilians, set up to monitor the intimidation policy for Afghan interpreters. My concern is that, without this amendment, the relocation possibilities available to former Afghan interpreters will be significantly and unfairly reduced. I acknowledge, of course, that before ARAP our ex gratia redundancy scheme, though not without its problems, nevertheless managed to relocate well in excess of 5,000 interpreters and their families, and I think that number is probably now significantly higher. But ARAP was meant to improve eligibility even further. It now appears that the Government are determined to row back again with new restrictions, even though, at the point of the Taliban’s takeover, there were interpreters who had already obtained security clearance under either the ex gratia scheme or ARAP.

We need—and these people deserve—clarity. This amendment would ensure that they were eligible under category 1 of ARAP. They also deserve transparency of decision-making, but last July the Home Office rejected 21 interpreters on national security grounds for relocation under ARAP, despite the fact that the MoD had already confirmed that they were eligible. Their rejection letters from the Home Office gave no information on why this change of heart was made. Why is there not better alignment between the MoD and the Home Office on this? Nine of them have already had their rejections overturned, following judicial review, and this amendment would ensure that the others could also come to safety in the UK, as well as their family members, as was always the original intention and scope of the pre-ARAP scheme.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

It is a Home Office matter, so he was absolutely right on that, but it remains very important. Putting Ukraine into strong focus does not take away from our concern for what is happening to the people of Afghanistan. I doubt that it is getting any better; possibly it is getting worse. They still need our help and support.

On ARAP, the Home Office works with the MoD and the FCDO to ensure people’s safe passage here. I appreciate the sentiment behind the amendment, which seeks to widen further still the eligibility criteria, but it is not necessary to put the suggested changes in primary legislation. The Immigration Rules are designed to be altered where needed, with the approval of Parliament, to enable us to make changes such as those I have just been talking about. Having them prescribed in primary legislation would prevent the Government responding quickly where changes are required.

In any case, the specific changes put forward here are unnecessary. The ARAP rules as drafted, and changed as recently as December, provide us with the requisite flexibility to allow all those who made a substantive and positive contribution to the UK’s objective in Afghanistan, either directly for or alongside a UK government department, and who are now at risk as a result of that, to come to the UK. This has always been the intention of the scheme, and that is what is being delivered.

On additional family members, the ARAP rules reflect the wider immigration system in that principals can be joined by spouses, civil partners, durable partners and children under 18. It is right that they are consistent with other routes to the UK. In June last year we published guidance on how additional family members can join principal ARAP applicants here outside the rules, where there are specific levels of dependence or risk. This option has been widely used, and by definition provides us with greater discretion than having prescriptive criteria set out in the rules.

Security checks are carried out by the Home Office after the MoD has approved them. On JRs, the Home Office overturns MoD grants only ever on serious national security grounds.

The ARAP scheme has been a huge success. It has provided resettlement to more than 8,000 people already, with a similar number yet to come. The rules in place strike the right balance between providing support to those who need and deserve it and protecting the finite capacity of this country to resettle those in need. I hope the noble Baroness will be happy to withdraw her amendment.

[Baroness D'Souza (CB)]

My Lords, I thank the Minister, as always, for her answer. I think the most recent pronouncement from the Home Office on the ARAP scheme was that it would in future include only Afghan citizens who were explicitly involved in promoting British values and policies, which necessarily excludes an awful lot of people who worked for British companies but without necessarily being seen to be explicit in promoting their values.

Secondly, the Minister said that she did not feel it necessary for this to be in the Bill, but I feel strongly that unless these criteria are in the Bill they will never remotely happen, and therefore it is important that they be included. I feel that the ARAP scheme continues to be somewhat thin, a little confused and confusing and somewhat pusillanimous, but in view of the hour I beg leave to withdraw the amendment.

Amendment 84B withdrawn.

Nationality and Borders Bill

Baroness D'Souza Excerpts

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

[Lord Macdonald of River Glaven (CB)]

My Lords, powers to deprive British citizens of their citizenship have historically been very tightly drawn under UK immigration law for obvious reasons. However, I reminded the Committee that in 2003, 2006, 2014 and 2018, these powers were very considerably expanded, so that now they are exercisable against any British citizen who has dual nationality, where the Secretary of State is satisfied that deprivation is conducive to the public good. The breadth of this power is perhaps best understood by the Supreme Court’s conclusion in the Begum case, that this includes situations where the individual is unaware that they hold dual nationality and even where that individual has little or no connection with their country of second nationality.

I reminded the Committee of the words of the leading immigration law silk, Raza Husain QC, who said:

“This progressive extension over the last two decades has meant that it is no longer necessary to demonstrate that someone is a terrorist or a traitor before stripping them of British citizenship. Individuals may be deprived of citizenship on general public interest grounds of the sort usually invoked to justify deportation, rather than on the basis of their severing the bonds of allegiance that are the hallmark of nationality.”


The drastic nature of this power was well described by the United States chief justice Earl Warren, a Republican, put on the court by President Eisenhower, who said that the loss of nationality amounts to

“the total destruction of the individual’s status in organised society… the expatriate has lost the right to have rights.”

He was channelling Hannah Arendt there.

Deprivation of citizenship is such a drastic and far-reaching power that it must be accompanied by proper procedural safeguards. That much is obvious. This is a power that has been beloved of some of the worst regimes in history. If we are to permit this power to a Secretary of State, it must be accompanied by procedural safeguards. In its original form, Clause 9 went in precisely the opposite direction, removing the most basic safeguard of all—the safeguard of notification —really at the Secretary of State’s whim. That was not good enough and, like my noble friend Lord Anderson, I am grateful to the Government for having listened to the debate in Committee and for having changed course. Again, like him, I am satisfied that serious movement has been made and that some of our most serious concerns about the clause as originally drafted have been responded to appropriately. For that reason, I will be supporting this amendment and am extremely grateful to the noble Lord, Lord Anderson, for moving it.

[Baroness D'Souza (CB)]

My Lords, the amendments tabled by the noble Lord, Lord Anderson, add hugely important safeguards to Clause 9, but subsections (5) to (7), which are set out on page 12 at lines 13 to 19, would remain in place and appear to make lawful what is clearly unlawful. The secret power to deprive citizenship without notice and/or appeal threatens our cherished British values of fair play and the rule of law. It would also risk unduly affecting ethnic minority communities. Subsections (5) to (7) seek to instruct the courts to treat past unlawful deprivations as if they were lawful, even where the courts have found that these actions failed to comply with statute at the time when they were made.

Parliament, it seems to me, is being asked to condone a disregard for the law by those Ministers who took away British national citizenship when it was illegal to do so. If these provisions remain in the Bill, a series of unlawful deprivation orders made against young women from minority ethnic communities will not be subject to any scrutiny whatever. This cannot be right.

It seems clear from what has been said so far on this clause that the most profound concerns still relate to Clause 9 as a whole and—although the amendment tabled by the noble Lord, Lord Anderson, alters the whole tenor of the Bill and grateful thanks are due to the Minister for enabling this—the concerns remain. These clauses would create a secret power. Clause 9 goes well beyond cases where the Government cannot provide notice. According to the Policy Exchange think tank, at no point in the last century has it been thought that national security called for depriving British citizens of their citizenship without notice. We cannot see the case for this now, at a time when our closest allies, such as the US, are warning that depriving individuals of citizenship is not an effective way to fight terrorism.

The main issue in this group of amendments is whether Clause 9 should remain part of the Bill. My suggestion is that it should be removed to create certainty and clarity. It seems to me that the optimal solution would be to remove this clause altogether, not only because, as it stands, it is contrary to British law and indeed to parts of the UN refugee convention, but because this clause—as well as new subsections (5) to (7) proposed by the amendment in the name of the noble Lord, Lord Anderson—seem to enable further restrictive orders, something that we as a scrutinising Chamber should avoid at all costs. Therefore, while I will of course support the noble Lord’s amendment, I will also seek to move my amendment, which would leave Clause 9 out.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a great pleasure to follow the noble Baroness, Lady D’Souza, and I agree with what she said and that, although the amendments moved by the noble Lord, Lord Anderson, have made Clause 9 less bad, it is still a bad clause that should disappear from the Bill. When introducing this group, the noble Lord, Lord Anderson, said that these amendments were all about Clause 9. I would rather say that my Amendment 22, to which I will speak, was provoked by Clause 9. One thing revealed in public debate—and there has been an enormous amount of public debate around Clause 9—is the fact that so many people had not realised that what the Minister described earlier as the “warm embrace of citizenship” can be taken away, and that there is profound discrimination in the way that this can happen.

The noble Baroness, Lady Chakrabarti, talked in Committee talked about two-tier citizenship; I talk about it as two classes of citizenship. I regret that I was not able to take part in Committee; I thank my noble friend Lady Jones of Moulsecoomb for very ably speaking for me. However, there are about 6 million Britons—I declare an interest as I am among them—who, because of another citizenship or their descent from people who came to Britain and chose to be Britons, have second-class citizenship. It can be taken away by the Government and, as the noble Lord, Lord Macdonald of River Glaven, just outlined very clearly, we have seen a very rapid and considerable escalation of the ways in which that power can be, and has been, applied.

My Amendment 22 makes one exception. If someone attains citizenship by means of fraud or misrepresentation, obviously, the power should remain for that citizenship to be taken away, but if that citizenship has been acquired honestly, my amendment says that it cannot be taken away. I suggest to your Lordships’ House that this is the only way that we can ensure that every British citizen is the same class of citizen and treated in the same way. Given that people who have, or have access to, alternative citizenships come from migrant backgrounds, the discrimination in how this is applied is very obvious. I note from having read the Hansard report of Committee very carefully that the noble Baroness, Lady Mobarik, expressed support for this. I thank the noble Lord, Lord Paddick, for also expressing support in principle for the idea that there should be only one class of citizenship and the Government should not be able to take it away.

I can imagine the response I might hear from the Minister: what about someone who is a security threat? If we have given millions of people British citizenship, we have benefited from the contributions, of all kinds, that they have made to the UK. Should we be able to say, “This person’s a problem so we’re going to get rid of them”, and make them someone else’s problem? If a person is a security threat to the UK, they might well be a security threat to the country that they hold citizenship for and that we send them to. Why should we be able to dump our problems on someone else?

I find myself torn. I aware of the desire in your Lordships’ House to take away some of the worst elements of the Bill, but I also find myself supported by many people in civil society who say that they want to ensure that there is one class of citizenship. I have said to all the relevant authorities that I will reserve the right to call a vote on this, because I find it a matter of principle on which it is very difficult simply to withdraw the amendment. I would really like to hear everyone’s position on this, particularly the Front-Bench speakers—I hope one of the Lords spiritual might contribute—and everyone’s explanation of whether they believe there should be two classes of British citizenship. Having heard that debate, I will make a decision about whether to push Amendment 22 to a vote.

--- Later in debate ---

Moved by

[Baroness D’Souza]

20: Clause 9, leave out Clause 9

[Baroness D’Souza (CB)]

My Lords, having listened with great care to a number of Lords speak about Clause 9, I think it is accepted that citizenship of the UK is an enormous privilege, but it is also a right. It seems that, despite the wonderful amendments tabled by the noble Lord, Lord Anderson, there remain sufficient loopholes in Clause 9 for it to become, once on the statute book, a hostage to fortune. In view of that, I would like to test the opinion of the House.

Operation Warm Welcome

Baroness D'Souza Excerpts

Thursday 25th November 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

Yesterday’s tragedy brought into sharp focus the human cost of criminals, caring nothing for human life, recklessly bringing people across the channel—and in what did not even look like boats yesterday. I totally agree with my noble friend.

[Baroness D’Souza (CB)]

My Lords, the refugee burden on counties in the south-east of the UK is unfair. What incentives are being offered to families in other counties to open their doors to some of the persecuted Afghans? Are the UK Government considering schemes to place some of the hundreds of those waiting in hotels into settled communities, as is being attempted in Canada, for long-term social, economic and cultural benefits?

[Baroness Williams of Trafford (Con)]

The noble Baroness gets to the heart of what an ideal system looks like, which is integration into communities. There is of course a community sponsorship scheme; I pay tribute to the Church of England, and the Catholic Church in my own area, for the work they have done on that. On what we are doing to incentivise, we are giving £20,500 to local authorities over three years to support each person’s integration. As I say, we are most grateful to those 323 local authorities which have pledged their support.

Regulation of Investigatory Powers (Criminal Conduct Authorisations) (Amendment) Order 2021

Baroness D'Souza Excerpts

Tuesday 12th October 2021 Lords Chamber

Moved by

[Baroness D’Souza]

That this House regrets that the Regulation of Investigatory Powers (Criminal Conduct Authorisations) (Amendment) Order 2021 (SI 2021/601) does not provide adequate safeguards on the actions of covert agents, as the Covert Human Intelligence Sources (Criminal Conduct) Act 2021 failed to include express limits on the crimes covert agents can commit; and calls on Her Majesty’s Government to amend the Act to provide proper limits on, and oversight of, crimes committed by covert agents.

Relevant document: 4th Report from the Secondary Legislation Scrutiny Committee

[Baroness D’Souza (CB)]

My Lords, I am very grateful that some noble Lords are still here. That is very nice. I make no apologies for returning to the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, which was so thoroughly debated and amended in this House earlier this year. As I said while the Bill was passing through this House, I am truly happy that a previously secret process has been put on a statutory footing. That said, I also wish to have it on record that there remain serious gaps which would allow authorised agents to commit serious crimes with impunity. These gaps have not been adequately addressed in this regulation of investigatory powers statutory instrument and for this reason I have tabled this Motion.

The statutory instrument concerns requirements on the level of seniority for MI5 officers and those of other bodies who are authorised to sanction CHIS participation in crime and to record the criminal conduct authorised. The SI includes the crucial phrase

“including any parameters of the conduct authorised.”

I understand that these parameters will reflect only the conduct being authorised and will not include substantive limits on the crimes which may be committed. This, theoretically at least, enables involvement in serious abuses such as murder and/or torture.

The Government claim that, by introducing the requirement of recording any criminal authorisations, limits are effectively set on the crimes in which the CHIS Act may be involved. However, without hard limits there is nothing to ensure that the criminal conduct authorised does not itself involve abuses. As such, the SI is to my mind incomplete.

The point was argued at several stages during the passage of the CHIS Bill. Despite earnest pleas to tighten up the named crimes, as happens in countries such as Canada and the USA, the Government declined to do so. The argument put forward by the Government that defining more closely forbidden criminal actions, including murder and torture, would represent a risk of exposure to those working under deep cover is one that many other countries have rejected.

The Government are therefore asked once again to reconsider this SI and to include within it express statutory limits on the kind of criminal action that can be authorised. It is of course accepted that the mandatory application of finer points of the law in the potential context of immediate and present danger is a step too far. However, murder and torture are extremely serious crimes and as such need to be expressly forbidden. Furthermore, the fact that the phrase in question in this statutory instrument is left open, without express limits in the main Act, surely conveys the message that both murder and torture are, under certain circumstances, acceptable.

I welcomed the CHIS Act in so far as it placed the process of authorising criminal conduct on a statutory footing, as I said. However, a clearly stated prohibition under any circumstances of murder and/or torture would further assist in clarifying the operational environment and ensure that the UK upholds human rights laws. I beg to move.

[Lord Paddick (LD)]

My Lords, we support the Motion to Regret moved by the noble Baroness, Lady D’Souza, to the extent that we too believe that this statutory instrument does not provide adequate safeguards on the actions of covert agents. However, we believe that the reason given by the noble Baroness in her Motion is not within the scope of the order. However, we feel that this House should regret the order because the authority level for authorising criminal conduct by covert human intelligence sources is not sufficiently high. Indeed, as was made clear in the Explanatory Memorandum, it is only at the same level as it would be if the CHIS were not participating in crime.

As we made clear during the passage of the Bill—now the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, which made the main part of this order necessary—we agree completely that there should be stronger safeguards surrounding the deployment of agents or informants in circumstances where they are permitted to commit crime. Agreeing with the noble Baroness, Lady D’Souza, we argued that there should be limitations on the crimes that covert agents can commit beyond the implicit Human Rights Act limitations. However, that issue was debated and decided on when this House considered the primary legislation. We did not win the argument. This statutory instrument does not impact on the types of criminal activity that an agent or informant can commit. We therefore consider that the noble Baroness’s justified concerns are not within the scope of the instrument.

We also maintain that there needs to be clear judicial oversight of such deployments to the extent that judicial commissioners should have the authority to prevent the deployment of—or, in urgent cases, to withdraw safely from deployment—agents or informants authorised by the police, the security services and other authorities to commit crime. Currently, there is a duty only to inform judicial commissioners within seven days of deployment, with no statutory mechanism for judicial commissioners to revoke the authority. Again, we debated this at length during the passage of the then Bill. We did not prevail in our insistence on these safeguards and the issue is not within the scope of this statutory instrument, but we feel that it is important to restate our position in this regard.

What is within the scope of this order, and what we do regret, is the authority level of the officer—particularly in the police—who can authorise an agent or informant to commit crime. In urgent cases this can be a police inspector. I was a police inspector at the age of 24. The Government may say that only specially trained inspectors can authorise the deployment of CHISs and that this will be written into the CHIS code of practice, but my understanding is that that is not contained in either primary or secondary legislation. Can the Minister confirm that it would not be unlawful for any police inspector to grant such an authority, even if it were against the code of practice? On that, the Explanatory Memorandum says that

“the formal process to update the Code is under way.”

Can the Minister confirm that, as this statutory instrument is already in force, these changes have already come into effect but the code of practice that underpins it is not yet in place?

The Explanatory Memorandum goes on to say:

“The updated Code will be subject to Parliamentary scrutiny upon the laying of an additional SI in due course”.


Can the Minister confirm whether this has happened, or when it is likely to take place? Will it be subject to the negative or affirmative procedure?

There is a world of difference between deploying an agent or informant benignly into a scenario and authorising that agent or informant to commit a crime; it is a degree of magnitude more serious, no matter what the crime is, yet the authority levels set out in this statutory instrument are the same as for a simple deployment with no authority to commit crime.

I refer back to the debates that we had during the passage of the original Bill. The noble Baroness, Lady Manningham-Buller, referred to the impeccable and courageous agents deployed by the security services, perhaps conjuring up the image of James Bond in the public imagination. I contrasted this characterisation with the fact that most informants employed by the police are criminals. I would go further, and refer to the activities of undercover police officers that have recently been the subject of both a public inquiry and successful action in the courts.

The Government will say—indeed, the Minister said during debates on the Bill—that undercover officers would never be authorised to have sexual relations with activists. In an action brought against the Metropolitan Police Service and the National Police Chiefs’ Council, where the claimant successfully argued that her human rights—her right to freedom from inhuman and degrading treatment, her right to privacy and her right to freedom of expression—had been infringed, the Investigatory Powers Tribunal at the Royal Courts of Justice found:

“We are driven to the conclusion that either senior officers were quite extraordinarily naive, totally unquestioning or chose to turn a blind eye to conduct”—


sexual relationships—

“which was ... useful to the operation”.

According to the BBC report of the case dated 30 September, the tribunal also found that the failure of the Met and the NPCC to guard against the risk of undercover officers entering into sexual relationships with women amounted to unlawful discrimination against women. The tribunal concluded:

“Our findings that the authorisations”—


under the Regulation of Investigatory Powers Act 2000—

“were fatally flawed and the undercover operation could not be justified as ‘necessary in a democratic society’ revealed disturbing and lamentable failings at the most fundamental levels.”

This was not in the era of “Life on Mars”, when I joined the Metropolitan Police in the mid-1970s; this was this century. The officer concerned was not deployed undercover in connection with this case until 2003. This is not ancient history but at a time when the current commissioner and I were both senior Metropolitan Police officers, although neither of us had anything whatever to do with the case that I am describing. I am simply making the point that the senior officer in charge of the Metropolitan Police today was a senior officer in the Metropolitan Police when this happened, in terms of temporal proximity. The Government cannot say with confidence that that was a long time ago and the officers around at that time, who oversaw undercover officers and allowed that sort of thing to happen, are no longer serving.

Trust and confidence in the police have been severely undermined by recent events, as the Government have themselves admitted, yet here we are, allowing relatively junior police officers to authorise criminals and undercover police officers to commit crime with ineffective judicial oversight. The authority levels, as set out in this statutory instrument, are too low, the range of offences that agents and informants can commit is too wide, and the judicial oversight is not stringent enough. The Government are asking us to trust the police to authorise criminals to commit crime by passing this statutory instrument into law, while at the same time telling the public not to trust police officers, particularly lone male officers in plain clothes. We regret this statutory instrument for the reasons that I have set out.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

As I said during my response to the debate, the officers who authorise are trained but the noble Lord is now getting into the area of rank and asking whether the authorising officer would have to be an inspector or above as well as trained. Rather than guess what the right answer might be, I shall write to him on that point of clarification.

[Baroness D’Souza (CB)]

My Lords, I thank the Minister and all those who have contributed to this debate warmly for their response.

I had not expected there to be a Damascene conversion in the past 30 minutes or so. However, I maintain that the SI as it stands is incomplete and find it difficult to understand why it is possible, for example, to talk about sexual abuse but not mention murder or torture. It rather looks as though the Act and the SI exclusively allow murder or torture as crimes that can be committed by covert agents.

The noble Lord, Lord Paddick, talked about the transgressions of policemen and questioned the rank of those who could authorise people to commit crime. That underlines the issue that I have mentioned, which is that sexual transgressions take place in the mood of the moment and are extremely serious. But so are murder and torture. It seems odd that it was difficult to mention that in the Act or the SI. The noble and learned Lord, Lord Mackay, reminds us, rightly, that any authorising agent must abide by the Human Rights Act. But there again, if it is a question of abiding by that Act, what is the difficulty in mentioning serious crimes such as torture and murder? It therefore seems that there is reluctance on the Government’s part to circumscribe the kind of crimes that can be committed within the CHIS Act. I wanted to put that on the record because I fear that the matter is unclear and the lack of clarity will have adverse consequences in the long run.

I nevertheless thank the Minister for patiently going over ground that we have covered at length previously, but it is worth taking a stand on this SI. We so rarely get an opportunity to really discuss SIs on the Floor of this House and it is important to do so. Meanwhile, I beg leave to withdraw the Motion.

Motion withdrawn.

Afghan Relocations and Assistance Policy

Baroness D'Souza Excerpts

Wednesday 15th September 2021 Lords Chamber

Asked by

[Baroness D’Souza]

To ask Her Majesty’s Government what steps they are taking through the Afghan Relocations and Assistance Policy to support (1) individuals, and (2) groups, working on Official Development Assistance funded projects on gender and women’s rights in Afghanistan.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the Afghan relocations and assistance policy was set up to facilitate the resettlement of Afghan nationals who worked with the UK Government in Afghanistan. A number of gender and women’s rights activists were evacuated as special cases under Operation Pitting, and those still in Afghanistan may be eligible for resettlement under the Afghan citizens’ resettlement scheme.

[Baroness D'Souza (CB)]

I thank the Minister. What precise assessment has the FCDO made of the number of affiliated academics and/or researchers currently in hiding? What on-the-ground assistance can be relied on to ensure their safe evacuation within the next few days?

[Baroness Williams of Trafford (Con)]

As the noble Baroness will know, safe evacuation within the next few days is incredibly challenging, first, because of the lack of consular assistance and, secondly, because of the dangers in getting people out. But the schemes that we are running will enable people like those the noble Baroness talks about to ultimately find safety in this country.