Illegal Migration Bill

Debate between Baroness Hamwee and Lord Kerr of Kinlochard

Committee stage
Monday 5th June 2023 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My question is even more simple: where is the impact assessment? I think the purpose of impact assessments is to inform the legislative decision. We hear that there will be an impact assessment and it will be produced shortly, but it seems unlikely to be produced while this Bill is being considered in this House. I think that is rather insulting, particularly as the Government rest their intellectual case on the deterrent effect. They say that the numbers will go down as word gets about of how people are to be treated, what “inadmissibility” means and how it is to be applied.

I am strongly against that on legal grounds—I think we should honour our international commitments—and humanitarian grounds, but it is impossible just to consider this argument on its merits if we cannot see the assumptions underlying the Government’s judgment of the impact. The questions from the noble Lord, Lord Coaker, are all extremely apposite and I look forward to the answers to them, but it seems to me that in relation to the deterrent effect, the impact assessment—wherever it is, whenever we will see it—will have to consider why people leave their home country and seek asylum far away. Why are they coming here? Will they be deterred by talk of us getting more brutal? We are going to get more brutal if we pass this Bill, but we are not going to get half as brutal as the conditions of the countries from which they are fleeing—75% of those seeking asylum in this country are found by the processes to have a well-founded fear of death or persecution back home.

Talk of pull factors is all nonsense: it is all about push factors. They are fleeing from horrors, from famine, from massacre, from murder and from war. It is difficult to see the deterrent factor as likely to be to be large, given the scale of the factors that are bringing about the flow. The impact assessment may prove me wrong. Certainly, the Government should, if they have the courage of their convictions, produce the evidence and the assumptions that underlie these convictions, and they should do it before we finish considering the Bill.

[Baroness Hamwee (LD)]

My Lords, does the noble Lord agree that one of the underlying provisions that we should know about is the safe and legal routes that we are told will deal with any number of people? Situations change so fast. I am not sure we had quite started the Bill when Sudan flared up as it did. There is an awful lot we need to know in order to know how the Bill will work.

Nationality and Borders Bill

Debate between Baroness Hamwee and Lord Kerr of Kinlochard

3rd reading
Monday 14th March 2022 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, on these Benches we support the amendments, but I ask the Minister to go back to the—to me quite worrying—announcement she made at the beginning of this debate, regarding the legislative consent Motions or otherwise. The fact that the Scottish and Welsh Governments do not support the Bill—I assume that is the political and, if you like, philosophical reality behind their stance—seems to raise not just political but practical and procedural issues and matters of enforcement.

I will refer to one issue in the Bill: the arrival or entry into the UK. If asylum seekers arrive at the coasts of Scotland or Wales rather than England, what is to happen? I understand that the Minister’s tone had to be quite neutral and not alarmist, but there are very serious issues related to this. I think the House would be grateful if the Minister were able to flesh out the position a little more.

[Lord Kerr of Kinlochard (CB)]

We have greatly improved Part 2 of the Bill, because it no longer flies in the face of the 1951 refugee convention as understood by our courts, all the other parties to the convention and UNHCR, the institution given the responsibility of overseeing the implementation of the convention. I really hope the Minister will ensure that her colleagues in the other place understand that many in this House feel very strongly about this and would be unlikely to change our view if we were again asked to consider the introduction, contrary to the convention, of a first safe country rule.

There is never a good time for a unilateral reinterpretation of international obligations, but there could not be a worse time than when there are 2.7 million refugees in continental Europe and the Russians are trampling on the 1949 Geneva conventions. We really need to hang on to our reputation for believing in a rules-based system and the rule of law.

Nationality and Borders Bill

Debate between Baroness Hamwee and Lord Kerr of Kinlochard

Report stage
Tuesday 8th March 2022 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I will speak in support of my noble friend Lord Sandwich. This amendment would take us back to the pre-2012 situation. There is no doubt—there is overwhelming evidence—that not being able to change employer means that these luckless people get stuck with an abusive employer in some cases. This is easily remedied. I agree with the noble Earl that the amendment is skilfully drafted. It proposes a modest change that would undoubtedly do good, and I very much hope that the Minister will be able to accept it.

I detected a slight trace of politics coming into our debate on Amendment 75. I was a Sir Humphrey once, and I commend to the Minister “unripe time”, which is very good, and “due consideration”—“shortly” is very dangerous. Seriously, I see no difficulty with an investor visa, provided that it is for a real investment that is actually invested in plants, machinery or jobs in this country. What worries me is that it is sufficient simply to hold some gilts for a short period and then sell them again—I do not think that that is good enough.

[Baroness Hamwee (LD)]

My Lords, golden visas and gilts—exactly. I am pleased to have my name to the right reverend Prelate’s amendment, which I moved in Committee as she was unable to speak to it—she had to leave part way through. The amendment from my noble friend Lord Wallace is very topical—sadly topical; having continued for far too long and being topical throughout the period, is the position of migrant domestic workers.

By definition, I failed to persuade the Minister in Committee. She cited James Ewins’s report about the length of stay and the likelihood of exploitation. The report made two key recommendations. One was about information meetings, which I understand have fallen into disuse, the other was the partial but significant relaxation of the visa tie, on which he said

“the existence of a tie to a specific employer and the absence of a universal right to change employer and apply for extensions of the visa are incompatible with the reasonable protection of overseas domestic workers while in the UK”.

I hope the right reverend Prelate has more success than I did on the previous occasion and if she does not, then I hope the group meeting with Home Office officials does.

Nationality and Borders Bill

Debate between Baroness Hamwee and Lord Kerr of Kinlochard

Lords Hansard - Part 1 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I would like to say a word in support of the spirit of these amendments. Specifically, I would like to speak in support of Amendments 37, 38 and 42, in the name of the noble Baroness, Lady McIntosh, introduced brilliantly by the conscience of the House, the noble Lord, Lord Griffiths. Yet, my heart is not in this game. This is what Americans call “putting lipstick on a pig”—it is still a pig.

The only element of this group which I can whole- heartedly support is that Clause 11 should not stand part of the Bill. Our Constitution Committee gave us a choice: it said that we should either remove or redraft Clause 11. I understand what all these redrafting amendments are trying to do, but it is not a good idea. This is not a case for “death by a thousand cuts”; it is a case for a “short sharp shock”. We need to take Clause 11 out of the Bill.

Why? Because the refugee convention matters; it is an important plank in the international legal order. Clause 11 flies directly in the face of the refugee convention, because it creates two classes of refugees: one with convention rights, and one without convention rights. The charge that it is a breach of the convention is put authoritatively not only by our Law Society and the Law Society of Scotland, but by UNHCR in its 72-page memorandum. That is a pretty authoritative source; indeed, it is the authoritative source. When we set up the refugee convention, we asked UNHCR to be its guardian, to supervise its application, and to report to the Secretary-General on laws on refugees in the signatory states. Therefore, it was not interfering, but doing the job which we, when we wrote the convention, asked it to do. I find it a shaming thought that its report on this Bill will have been seen by all 147 signatory states.

Why is UNHCR so sure that the Bill undermines the convention? Clause 11 is the heart of the matter. UNHCR believes that creating a two-tier system for handling asylum seekers—one class legitimate, one illegitimate—conflicts with the simple definition of a refugee in Article 1 of the convention. A refugee, says the convention, is someone who,

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”.

That is all: he is outside his country of origin. The definition says nothing about any requirement to seek asylum in a particular place, and nothing about regular or irregular routes; it contains no suggestion that he is out of order if he does not seek asylum in the first safe country—there is no such requirement anywhere in international law.

A refugee is a refugee is a refugee, and must be treated as such, according to the provisions of the convention, however he got there. That is what the convention says and that is what we have believed down the years. Stretching the meaning of Article 31, as the Government seek to do, cannot change or qualify what Article 1 says, or add something that it does not contain. I have set out the definition of a refugee. There are no two categories; the definition is very simple.

I am no lawyer, and here I am surrounded by eminent, terrifying legal expertise—even including the noble and learned Lord, Lord Clarke of Nottingham; as his former private secretary, I am horrified to see him there—but the definition of a refugee, and of our sin in this Bill, from the UNHCR and the law societies, must be right, because I cannot see how 147 countries would have signed up to the convention if they had thought it meant what the Government now say it means. Four in every five refugees are in developing countries adjacent to their country of citizenship. Would host countries have agreed that guests should never move on, and that they should be required to apply for asylum only in their first host country? Would the developing world have agreed that the developed world could wash its hands of the problem of looking after refugees because they were going to have to stay in the first safe country they reached on fleeing over a frontier? I do not think so. It plainly was not what those who signed up to the convention thought it meant, and the attempt to have an expansive reading of Article 31 and so change the meaning of the convention as a whole, in particular Article 1, looks quite a legal stretch. I agree with our Constitution Committee, the law societies and, importantly, the UNHCR.

I feel for the Minister, because the case she is asked to make on the legal position and the convention seems as eccentric and unconvincing as the claim of the noble Lord, Lord Frost, that you can extinguish the role of the CJEU in Northern Ireland by using Article 16 of the Northern Ireland protocol. I will stay away from the law—this is a rash foray—but I will stick with the UNHCR, the law societies and the conventional reading of the convention, which is how 146 countries still read it, and say that we really need to get rid of Clause 11.

[Baroness Hamwee (LD)]

My Lords, Clause 11 is the most objectionable clause in this whole objectionable Bill. It has to go, and not just because of what the convention says, our having signed and supported it and so on. It is not just because there is a convention but because the convention is right. However, we have to pick at the Bill. We will have the debate that the noble Lord, Lord Kerr, has started us off on so well on Report, but this is our opportunity to see whether there is any give in the Government’s position and whether there is anything we can, quite bluntly, take apart on Report in a way we have not yet thought of.

My noble friend Lord Paddick, the noble Lords, Lord Rosser and Lord Blunkett, and the right reverend Prelate the Bishop of Durham have indicated their objection to the clause standing part. Had we been able, under the procedures of this House, to add more than four names, I think there would have been a very long list.