Illegal Migration Bill

Baroness Garden of Frognal Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

[Lord Etherton (CB)]

I thank all noble Lords who have spoken and the Minister for what he said. I am afraid that I am not persuaded that the Minister has fully grasped the difference between the two types of people I have mentioned—those who come from a safe place and those who do not come from one of these Section 80AA places and who could be removed to somewhere within Schedule 1. He has not explained why it is acceptable for women—one group—to be identified and excluded in relation to countries in Schedule 1 but for not another diverse group which faces persecution. So far as the evidence is concerned, I think he challenged only Rwanda on that. I have already explained that in the light of all the independent evidence I do not accept that Rwanda is not a hostile place for LGBTQ+ people, particularly for those who are trans. On the basis of that, I shall seek to test the opinion of the House.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

The Question will be decided by a deferred Division on Monday.

Nationality and Borders Bill

Baroness Garden of Frognal Excerpts

Lords Hansard - Part 1 & Committee stage
Thursday 10th February 2022 Lords Chamber

Raising the standard of proof at reasonable-grounds stage where minimal information is collected by the competent authority could foreseeably result in fewer referrals being made and will increase the prospect of potential victims not being identified by the national referral mechanism, thereby with an investigation not even taking place. In my view, it would be regrettable if, by raising the standard of proof at reasonable grounds stage, fewer referrals would made but the prospect of potential victims not being identified by the NRM without an investigation taking place would increase. So, I raise my concerns and those of the Law Society of Scotland about raising the evidence bar in the guidelines and give my noble friend the opportunity to explain. I beg to move.

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

My Lords, if Amendment 156 is agreed I cannot call Amendment 156A by reason of pre-emption.

[Lord Alton of Liverpool (CB)]

My Lords, it is a great pleasure to address Amendments 156A and 156B in this group and to follow the noble Baroness, Lady McIntosh of Pickering, and what she said about the Scottish Law Society. I very much associate myself with her remarks. I turn the attention of the Committee to these two amendments, the kernel of which is

“(1ZA) Guidance issued under subsection (1) must, in particular, provide that the determination mentioned in paragraph (c) is to be made on the standard of “suspect but cannot prove”.”


My explanatory statement says—I will not read it all—

“This amendment would ensure that amendments made to the Modern Slavery Act 2015 do not raise the threshold”—


the point the noble Baroness has just referred to—

“for a Reasonable Grounds decision when accessing the National Referral Mechanism in line with—”

the guidance.

One thing that came out of the last debate was that it was pretty clear that the whole Committee is agreed about one thing: that the national referral mechanism is vital to the recovery and safety of survivors of modern slavery. Since its introduction in what the noble Lord, Lord Coaker, was right to refer to as “landmark legislation” in 2015, a point echoed by the noble and learned Lord in replying to that debate, it has allowed us to identify survivors and ensure they receive the right support and are able to assist law enforcement in tackling this abhorrent trade in human beings and human suffering. I am very grateful to my noble friend Lady Prashar and to the right reverend Prelate the Bishop of St Albans for signing Amendment 156A.

Accessing the NRM is the crucial first step on a survivor’s journey to recovery, giving them access to vital legal and financial support, safe accommodation and an exit from the kind of exploitation that the noble and learned Baroness, Lady Butler-Sloss, referred to earlier. It enables them to start the process of rebuilding their lives, empowering themselves and even bravely supporting the prosecution of traffickers so that more potential victims are saved from exploitation. First established in 2009, and supported by successive Governments, the NRM was recently highlighted by the Organization for Security and Co-operation in Europe as being a key element in the fight to end slavery. Since then, with the introduction of the Modern Slavery Act 2015, the UK has become a world leader in this fight and a beacon of hope for those who have been trafficked and enslaved.

However, as the noble Lord said earlier, and I agree with him in this sense, the national referral mechanism is not perfect. That is clear but the opportunity to do something about it is up the track. There is no need for Part 5 to be incorporated in the Bill, when it is inconsistent with much else in it anyway. The noble Lord told the House earlier that there is to be new legislation, so why on earth can we not wait for that? There is an old saying that when you legislate in haste, you repent at leisure; that is what we will do if we simply push this through in a pell-mell way. The mechanism may not be perfect, but it is better than anything else at the moment and we should be very careful about what we do to it.

There is a catalogue of confusion and delays, but I am sure the Government do not believe that the only solution is simply to reduce the number of poor people able to access support. However, that is exactly what Clause 59 will do. Effectively increasing the threshold that these traumatised individuals must meet, almost from the get-go, to receive support will not only leave many with the choice of slavery or destitution; it will fundamentally undo the years of hard work by government, police, NGOs, charities and Members of both Houses.

Even now, far too many survivors go unrecognised and are excluded from support. Despite our understanding of the nature of trauma and the horrors so many have gone through, many do not receive a “reasonable grounds” decision and are forced to reapply. In the previous debate, we were urged to get into the real world. The noble Lord, Lord Coaker, had a better definition of what the real world is than the one we heard from the Government Front Bench. I will do as the noble Baroness, Lady Hamwee, did earlier and share one example with the House, if I may.

It is the case of a poor woman who was the victim of trafficking and violent sexual exploitation. By the time she arrived in the UK, she already had severe PTSD. Her symptoms included involuntary numbing, avoidance, dissociation and shame. She failed to disclose her trafficking experience in her early interactions with the Home Office, due to the severe trauma she had experienced. These inconsistencies later contributed to her receiving a negative decision on her trafficking claim. However, they needed to be understood in the context, as I said earlier, of prolonged exposure to trauma at an early age and fear of reprisals from her abusers.

Clause 59 risks raising the threshold for a positive reasonable grounds decision at this vital first stage, meaning that survivors such as that woman will be forced to meet an even higher threshold of evidence almost immediately, before they have accessed safety and a lawyer, translator or advocate to help provide the evidence that is expected of them. The noble Lord who addressed the House earlier has promised to write to the noble Lord, Lord Coaker, me and others with more data. Here is a little data that I will share with the noble Lord, Lord Sharpe.

It is worth noting that 81% of all negative decisions at this first stage which where reconsidered were found to have been wrong, and the victim deserved a positive reasonable grounds decision. Currently, there are an estimated 136,000 victims of modern slavery in the UK, and a little over 10,000 were referred to the NRM in 2020. That means there is a vast number of individuals who have been trafficked and enslaved in our country and are already far from the safety offered by the national referral mechanism. Were we to raise the threshold to access safety and support, it would surely only play into the hands of the traffickers and slave masters by preventing survivors sharing their experience and supporting criminal investigations.

I note that the Government have denied that Clause 59 will increase the threshold, and that the intention behind it is to bring us in line with the European convention on action against trafficking—ECAT. However, many who are in the anti-slavery movement, to which we heard a lot of references earlier, and on the ground in the real world supporting vulnerable people every day believe that it is already harder today than it was, even a year ago, to get a positive decision. As such, if not remedied in the guidance, the change in language represented in this clause would effectively raise the NRM threshold.

Furthermore, the Government have rightly decided to include in the Bill that conclusive grounds decisions be made on the balance of probabilities. If the intention is not to raise the threshold, then I simply ask the Minister that they put in the Bill that reasonable grounds decisions be made on the tried and trusted standard of “suspect but cannot prove”, which is the essence of Amendments 156A and 156B. That would allow the Government to change the language of the Modern Slavery Act to be more in line with ECAT, in order to provide more consistency between conclusive grounds decisions and reasonable grounds decisions in the Bill. Vitally, it would not raise the threshold for survivors of trafficking to receive a positive decision, therefore ensuring that these poor people receive the support they so desperately need and the authorities have the evidence they need to end slavery.

Article 10(2) of ECAT says that

“if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence … has been completed”.

Both ECAT and the Modern Slavery Act envisage that support be given to victims through the NRM as the earliest stage possible, when someone is identified as a potential victim. Raising the threshold only to those who prove their status as a victim of trafficking would undermine the point of the three-stage referral system currently in place. That support is crucial to enable victims to make any discourses from a position of safety.

No doubt the Minister will say that the NRM may have been abused, but I ask him to provide the justification for that claim. As the noble Lord, Lord Coaker, and I said earlier, where is the data? I refer the Minister to the report by the Rights Lab at the University of Nottingham for evidence that the NRM is not being abused. Indeed, according to many reports, one of the biggest problems with our NRM is that it is underutilised; there are already a low number of referrals to the NRM. According to the Global Slavery Index, the estimated figure for the prevalence of modern slavery in the UK is 136,000, yet in 2020 only 10,613 potential victims were referred to the NRM. Raising the threshold would serve only to further restrict those who access the vital resources of the NRM.

I therefore felt it necessary to table these amendments. Those who are referred to the NRM are often among the most vulnerable, in the most traumatic moments of their lives. We should not be raising the threshold; we should be doing everything we can to facilitate their access to support. I beg to move.

Private International Law (Implementation of Agreements) Bill [HL]

Baroness Garden of Frognal Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 17th June 2020 Lords Chamber

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

We now come to the group consisting of Amendment 3. I remind noble Lords that Members other than the mover and the Minister may speak only once, and that short questions of elucidation are discouraged. Anyone wishing to press this amendment to a Division should make that clear in debate.

Clause 4: Extent, commencement and short title

Amendment 3 not moved.

Private International Law (Implementation of Agreements) Bill [HL]

Baroness Garden of Frognal Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 3rd June 2020 Lords Chamber

The proceedings were conducted in a Virtual Committee via video call.

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

Good afternoon, my Lords. This Virtual Committee will now begin. I remind Members that these proceedings are subject to parliamentary privilege and that what we say is available to the public both in Hansard and to those listening and watching.

I will begin by setting out how these proceedings will work. This Virtual Committee will operate like a Grand Committee as far as possible. A participants’ list for today’s proceedings has been published and is in my brief, which Members should have received. The brief also lists Members who have put their name to the amendments or expressed an interest in speaking on each group. I will call Members to speak in the order listed. Members’ microphones will be muted by the broadcasters except when I call a Member to speak and whenever a Question is put, so interventions during speeches are not possible and uncalled speakers will not be heard.

During the debate on each group, I will invite Members to email the Clerk if they wish to speak after the Minister. I will call Members to speak in order of request and will call the Minister to reply each time. Debate will take place on the lead amendment in each group only; the groupings are binding and it will not be possible to de-group an amendment for separate debate. Leave should be given to withdraw amendments. Whenever I put the Question, all Members’ microphones will be open until I give the result. Members should be aware that any sound made at that point may be broadcast. If a Member intends to press an amendment or say “Not content”, it will greatly assist the Clerk if they make this clear when speaking on the group. As in Grand Committee, it takes unanimity to amend the Bill, so if a single voice says “Not content”, the amendment is negatived; if a single voice says “Content”, a clause stands part.

We will now begin. We start with government Amendment 17. I remind noble Lords that anyone wishing to speak after the Minister’s winding-up speech should email the Clerk during this debate. The Minister should allow me to call those Members before seeking a decision on the amendment. It would be helpful if anyone intending to say “Not content”, when the Question is put makes that clear in the debate. As I said, it takes unanimity to amend the Bill in this Committee; the Committee cannot divide.

Clause 4: Extent, commencement and short title

Amendment 17

Moved by

--- Later in debate ---

[The Deputy Chairman of Committees]

We now come to the group beginning with Amendment 19. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. It would be helpful if anyone intending to say “not content” if the Question is put made that clear in the debate. It takes unanimity to amend the Bill in this Committee; this Committee cannot divide.

Amendment 19

Moved by

Non-Contentious Probate (Fees) Order 2018

Baroness Garden of Frognal Excerpts

Tuesday 18th December 2018 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, my amendment is fatal, and I do not move it lightly. The Government propose to increase fees for probate applications from the current flat rate of £215 for individuals or £155 for solicitors’ applications on all estates worth £5,000 by introducing a sliding scale of fees rising from £250 to £6,000 on all estates worth £50,000 or more. The fee is to be banded with a maximum £6,000 fee kicking in at £2 million. These are dramatic increases. According to the impact assessment, the existing fees reflect average administrations costs. That is why a solicitor’s application costs less than an individual’s application, simply because it costs less to administer. For estates above £2 million, the increase is twenty-eightfold. Just that increase would be 27 times the actual cost of administration. The Government expect these so-called enhanced fees to generate a profit of £145 million a year, rising as estate values increase.

The noble and learned Lord relied in his all-Peers letter and relies today on Section 180 of the 2014 Act as, “clear authority to set fees above cost to cross-subsidise other parts of the courts and tribunals system”. He says, “The level of fee does not have to be related to the cost of the service and all additional income raised from enhanced fees can only be used to fund an effective and efficient courts and tribunals system”. He is quite right to point out that Section 180 permits,

“a fee of an amount which is intended to exceed the cost of anything in respect of which the fee is charged”,

but it permits only a fee, not a tax. These are probate fees and not court fees. The element of cross-subsidisation on which he relies is wrong in principle, because he is using a totally different part of the system to subsidise court fees.

The Minister has pointed out that a similar proposal was made in 2017, but with an upper fee of a massive £20,000, and he understated the outcry that it provoked. The proposal was not pursued to conclusion—anyway, the 2017 election intervened. Then as now, the draft SI was considered by both the Joint Committee on Statutory Instruments and by your Lordships’ Secondary Legislation Scrutiny Committee. Your Lordships’ committee’s current report, published on 21 November, states:

“The Government estimate that the revised fee structure will generate over £145 million in additional fee income in 2019–20, which they plan to use to pay the running costs of other parts of Her Majesty’s Courts and Tribunal Services. We wonder whether the House envisaged the power being used for this degree of cross-subsidy when the Act was passed. This Committee’s concern about the revised fee structure remains the same as it was for the draft instrument laid in 2017: ‘while section 180 … permits the levying of enhanced fees, we are surprised to see it used to this extent. To charge a fee so far above the actual cost of the service arguably amounts to a ‘stealth tax’ and, therefore, a misuse of the fee-levying power.’”


As for the difference between the £20,000 fee proposed in 2017 and the £6,000 fee proposed now, the committee expressed the view, with which I agree, that,

“the underlying principle behind the charge has not changed”.

The Government explain:

“Even the highest fee in our scheme would represent no more than 0.5% of the value of the estate”.


The Minister repeated that today. The committee thought that this sentence, relating the fee to the value of the estate,

“gives the fee the appearance of a tax rather than a fee linked to the actual cost of providing the service”.

The Joint Committee reported on 5 December even more strongly, stating:

“The Committee draws the special attention of both Houses to this draft Order on the grounds that, if it is approved and made, there will be a doubt whether it is intra vires, and that it would in any event make an unexpected use of the power conferred by the enabling Act”.


It reminded Parliament that it had called last year’s draft order to the special attention of both Houses, on the grounds that,

“(a) the charges prescribed by it would in substance constitute a tax on estates, rather than probate fees, and may therefore be ultra vires; and (b) the Committee doubted whether Parliament contemplated that the enabling powers would be used in the way proposed by the Lord Chancellor”.

It distinguished enhanced court fees intended to pay for the Courts Service from enhanced fees for probate applications intended to subsidise the running of the Courts & Tribunals Service generally. The committee stated that,

“applying for probate is not to be compared with the commencement of proceedings. A person can choose whether to litigate, and therefore whether to incur the fees payable on issuing a claim—which may be recoverable from the defendant if the case succeeds. In contrast, executors have to obtain probate to allow them to administer an estate, and the fee for doing so is not refundable. This is an administrative process, akin to the registration of a life event. Nobody applying for an uncontested probate would think for a moment that they were engaging in litigation. That makes it difficult for the Committee to accept that a power to charge enhanced court fees can be extended naturally to require probate fees to reflect the general costs of the court and tribunal system”.

The point that executors have no choice but to apply for probate was powerfully made by the Law Society in its briefing for today’s debate. The committee thought these probate fees were like stamp duty and used the phrase “dressed up as ‘fees’”. It reminded Parliament:

“It is an important constitutional principle that there should be no taxation without the consent of Parliament, which must be embodied in statute and expressed in clear terms. In the Committee’s view, the 2018 Order is a measure of taxation for which there is no clear statutory authority”.


The committee referred to the 1921 case of the Attorney-General v Wilts United Dairies. However, there is older and more fundamental authority on the point of that case. In relation to tax-varying measures proposed in Clause 8 of the European Union (Withdrawal) Act, the Delegated Powers and Regulatory Reform Committee complained that the powers would enable the creation of what it called tax-like charges. It said:

“Fees and charges for services or functions should operate on a cost-recovery basis, leaving taxation for a Finance Bill”,


which it rightly described as,

“a principle enshrined in Article 4 of the Bill of Rights 1688”.

The question for this House is whether it is appropriate to treat the enhanced fees proposed in the draft order as fees or a tax. I invite the House to accept the view that what the Government are intending to do here is, impermissibly, to introduce a tax by secondary legislation by a misuse of their power under the 2014 Act.

I accept that a fatal amendment is unusual. However, the Cunningham committee, in its report Conventions of the UK Parliament in 2006, concluded that there are situations in which it is right for the Lords to threaten to defeat a statutory instrument, citing as an example,

“where special attention is drawn to the instrument by the Joint Committee on Statutory Instruments or the Lords Select Committee on the Merits of SIs”.

That is so in the case here for both those committees. Both committees took that course. I would add to the specific examples in the list produced by the Cunningham committee that where a proposed SI offends against the fundamental principle that taxation requires primary legislation that is fully amendable, that is a matter of constitutional importance which entitles this House, in our role as guardians of the constitution, to reject an SI on that basis.

I have two further short points. First, these charges are to be paid up front. There is no provision, as there could have been, for the Government to defer payment where necessary until the assets of the estate, often real rather than liquid assets, are realised. Executors are not always beneficiaries; they are often friends or relatives of the deceased acting out of kindness. I see no reason why they should be subjected to these substantial charges payable before—often years before—the assets of the estate can be realised. This is a point well made by the briefing prepared for today by the Institute for Family Business, which cites asset-rich but cash-poor farming businesses as an example.

The Minister’s response to this point is that they can borrow the money, and he made that point again today. Perhaps they can in certain circumstances, perhaps even in most circumstances, but at a cost that is often considerable, both financial and administrative. The burden of obtaining a loan is often very significant. The alternative response that the noble and learned Lord gave at the all-Peers meeting that he kindly arranged to discuss this SI was that solicitors would no doubt offer credit. I have to say that that does not match my experience of solicitors paying disbursements for their clients.

My other point is that there are specific remissions of fees proposed in respect of deaths in the 2004 tsunami and deaths as a result of the July 2005 terrorist attacks. I suggest that if there were to be prescribed remissions, there ought to be a power to remit far more widely in other cases. The power to remit fees in exceptional circumstances, the safety net mentioned by the Minister, does not seem to me to answer that criticism.

However, this last was a minor point in respect of this SI, which is of course unamendable—and the fact that it is unamendable is something that noble Lords may well wish to take into account when deciding how to vote on this Motion. My principal point is one of constitutional importance, however, and I suggest that on that basis this House should decline to approve the order. I beg to move.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, I should inform the House that if this amendment is agreed to, I cannot call the amendment in the name of the noble Lord, Lord Beecham, by reason of pre-emption.

Civil Liability Bill [HL]

Baroness Garden of Frognal Excerpts

Report stage (Hansard): House of Lords
Tuesday 12th June 2018 Lords Chamber

Amendments 7 to 10 not moved.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

If Amendment 10 had been agreed, I would not have been able to call Amendments 11 or 11A by reason of pre-emption.

Amendment 11

Moved by

--- Later in debate ---

Amendment 11A not moved.

[The Deputy Speaker]

If Amendment 11A had been agreed, I would not have been able to call Amendments 12 to 17A by reason of pre-emption.

Amendment 12 not moved.