Legal Aid: Social Welfare and Family Law

Baroness Lister of Burtersett Excerpts

Monday 18th November 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I think the noble and learned Lord has hit the nail on the head. Private family law hearings are a destructive process. It is not unusual for situations to get worse for the people engaging in them, in my experience. Having the legal representation helps the court, and it is something I hope we can work towards over time. However, there are other initiatives, such as the pathfinder project, such as early legal advice, such as mediation vouchers, which we would like to use to divert couples away from the court system where it is appropriate and there is not risk to the children.

[Baroness Lister of Burtersett (Lab)]

My Lords, my noble friend the Minister, in response to my noble friend Lord Bach, referred primarily to criminal legal aid. What does he think are the implications for the principle of equality before the law, which underpins the rule of law, of the disastrous impact of LASPO—introduced by the coalition Government—on the provision of legal aid and advice for social welfare law, as referred to by my noble friend?

[Lord Ponsonby of Shulbrede (Lab)]

I agree with the sentiments behind my noble friend’s question, but the reality of the situation is that building back better and more comprehensive support will take time. It is a step-by-step process. I understand the frustration which she expresses; nevertheless, I agree with her sentiments and we are working towards that end.

Victims and Prisoners Bill

Baroness Lister of Burtersett Excerpts

Report stage
Tuesday 21st May 2024 Lords Chamber

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

My Lords, the amendments in this group, Amendments 150 to 153, objecting to Clauses 49 to 52 standing part of the Bill, fall into two slightly different categories. The first three amendments, in my name and that of the noble Baroness, Lady Lister of Burtersett, who I am grateful to for her support, would remove the proposals in the Bill that Section 3 of the Human Rights Act be disapplied in relation to three pieces of legislation.

First, by Clause 49, the disapplication would apply to Part 2, Chapter 2 of the Crime (Sentences) Act 1997, which concerns life sentences and sentences of detention at His Majesty’s pleasure, release on licence for prisoners serving such sentences, and their release on licence, recall and removal from the UK, and will include all those amendments to be introduced by Clause 41 of this Bill. Secondly, Clause 50 would disapply Section 3 to Part 12, Chapter 6 of the Criminal Justice Act 2003, which concerns the release on licence, supervision and recall of certain fixed-term prisoners, and will include all those amendments to that Act to be introduced by Clause 42 of this Bill. Thirdly, Clause 51 would disapply Section 3 to Section 128 of the LASPO Act, or any order made under that section. That is the section which, as we have heard in debate at some length in Committee and earlier today, permits the Secretary of State to change the release test for certain prisoners, importantly including IPP prisoners, to shift the balance so that if conditions are met, an IPP prisoner must be released.

As will be familiar to the House, Section 3 of the Human Rights Act requires that:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”.


The ECHR is fundamental to the protection of human rights in this country. That is and has long been an article of faith for my party and the Labour Party, which was responsible for enacting the convention as part of domestic law by the means of the Human Rights Act. Indeed, it is important for many but not all in the Conservative Party; we have all seen the fault-lines on this issue over the tenure of this Government. However, the present Secretary of State for Justice is a keen advocate for the convention.

The architecture of the Human Rights Act has been widely and, I suggest, rightly praised for striking the balance between the sovereignty of Parliament and the convention. That architecture has at its heart the combination of Section 3—the section I just read—which requires convention-compatible interpretation and application of legislation where possible, and Section 4, which provides for a court to make a “declaration of incompatibility” where a legislative provision is found to be irrevocably incompatible with the convention right. The making of such a declaration leaves it to Parliament to legislate so as to comply with the convention and remove the incompatibility.

It follows that the proposed disapplication of Section 3 represents an invitation, almost an instruction, to courts to disregard convention rights when interpreting or applying the legislation. This is not a purely academic point; in relation to IPPs, for example, the European Court of Human Rights found in the case of James, Wells and Lee v UK in 2012 that the applicants’ IPP sentences were a violation of their Article 5 rights to liberty and security because the unavailability of rehabilitative courses meant that their detention after the expiry of their tariff terms was “arbitrary”.

As the Prison Reform Trust put it, in its helpful briefing for this debate:

“The introduction of specific carve-outs from human rights for people given custodial sentences contradicts one of the fundamental principles underlying human rights—their universality and application to each and every person on the simple basis of their being human. Moreover, it is precisely in custodial institutions like prisons that human rights protections are most vital, because individuals are under the control of the state”.


These carve-outs represent an insidious threat to the effectiveness of the convention in this country and, I suggest, a stalking horse for future legislation, undermining the balance between parliamentary sovereignty and the convention that I spoke of. They should be resisted.

I am bound to say that I find it very disappointing that the Labour Party is not whipping Labour Peers to support these amendments. The Human Rights Act was one of the Labour Party’s finest achievements. For Labour Peers to be instructed to condone by abstention the disapplication of Section 3 to these provisions is a sad portent for the future.

Before closing, I turn to Amendment 153, which seeks to remove Clause 52 from the Bill. Clause 52 does not seek to disapply any part of the convention, but it seeks to skew the court’s decision-making process on the application of convention rights in a way that is underhand and unacceptable. It would provide that, in making a decision as to whether a person’s convention rights have been breached in relation to a release decision:

“The court must give the greatest possible weight to the importance of reducing the risk to the public from offenders who have”


been given prison sentences. In other words, risk reduction is to outweigh all other factors. But what does the instruction to give “the greatest possible weight” say to a judge? The answer is effectively that no other factor is to count. There is to be no careful judicial balancing exercise, because if the risk reduction factor can be outweighed in the balance, a judge cannot, by definition, give that factor “the greatest possible weight”. Judicial discretion is to be removed; judges are to be compelled to reach decisions that they would not otherwise make, because they may not judge for themselves what weight to give to competing factors. That is not acceptable.

I fully intended to divide the House on these amendments, but given the Labour Party’s decision not to support them but to abstain and the fact that it is now late, I have decided not to. Nevertheless these amendments raise an important point of principle for all those who believe in the convention.

[Baroness Lister of Burtersett (Lab)]

My Lords, I was very disappointed by the Minister’s response in Committee, so I felt that I ought to have another go in support of the noble Lord, Lord Marks of Henley-on-Thames, aided by the British Institute of Human Rights and Amnesty International, which were also very disappointed.

First, the Minister said that this clause is not about disapplying the Human Rights Act. Well, of course it is not about disapplying the whole Act—but not just Amnesty, the BIHR and the Howard League, but also the EHRC, the chair of the JCHR and the Law Society take the view that it is disapplying Section 3. It feels like one of those occasions when the Government is the only marcher in step.

The BIHR challenges a number of the Minister’s arguments—first, his reassurance that it is still possible to plead any breach of human rights in the usual way and to seek a declaration of incompatibility. It points out that the point of the Human Rights Act was to bring rights home and provide an accessible, practical and immediate remedy. The excision of Section 3 makes access to human rights harder. He said it was a “difficult section to apply”. The BIHR argues the opposite, pointing out that it is used by lay front-line workers who see it as having given them a clear legal framework for arguing for the protection of people’s rights.

Victims and Prisoners Bill

Baroness Lister of Burtersett Excerpts

Report stage
Tuesday 23rd April 2024 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, Amendment 79, in my name and that of the right reverend Prelate the Bishop of Gloucester, would ensure that migrant victim-survivors of domestic abuse subject to the “no recourse to public funds” condition would be fully entitled to services covered by the victims’ code. I return to this amendment because of the unsatisfactory ministerial response to it in Committee, which simply repeated what was said in the House of Commons—which I had already challenged—and which tried to reassure us that the amendment was not necessary. However, on-the-ground organisations—notably Southall Black Sisters, to which I pay great tribute for its indefatigable work in this area—and the Domestic Abuse Commissioner see it as very necessary. Moreover, in February, the UN special rapporteur on VAWG recommended scrapping the NRPF condition altogether for this group.

In Committee, I asked for an explanation as to why the Government have still not implemented a long-term solution for this group, despite three years of pilots—now extended to 2025—which have been subject to both an official and unofficial evaluation, that clearly demonstrated where reform is needed, and despite strong pressure not just from the sector but from the Domestic Abuse Commissioner herself. The pilot was set up because the Government said that they needed more evidence. While that need was disputed at the time, surely now they have sufficient evidence to put in place the long-term solution that is needed. Once again, I ask: why have they not done so?

I hope that the Minister will not try to argue that the reforms to what was the destitute domestic violence concession—now the migrant victims of domestic abuse concession—spelled out in his letter to me and the noble Baroness, Lady Brinton, constitute such a solution. While these reforms extend the concession’s protection to partners of worker and student visa holders, they do not also extend eligibility for settlement under the domestic violence indefinite leave to remain.

Southall Black Sisters dismisses this reform as a red herring. In a letter to the Home Secretary, written along with over 50 other organisations, it makes clear:

“We oppose this so-called ‘extension’ because it creates a cliff edge at the end of three months for those who are unable to pursue any settlement route. They are usually expected to leave the country, which will discourage many victim-survivors from coming forward for fear of deportation, rendering the extension ineffective”.


It is also concerned that

“creating a separate route which is a watered-down version of the DDVC and DVILR model”—

the value of which, it is worth pointing out, is recognised internationally—

“will create confusion for victim-survivors and professionals, putting victim-survivors at risk of not making informed decisions about their rights”.

That is all the more true, given the near total destruction of legal aid and the lack of adequate funding for specialist services that could provide advice.

Here, I express my support for Amendment 60, in the name of the right reverend Prelate the Bishop of Manchester, as specialist community-based domestic abuse services, particularly “by and for” organisations, are a vital element of the domestic abuse victim-survivors infrastructure.

Returning to the question about “no recourse to public funds”, the DAC has commented that the revised scheme

“doesn’t even scratch the surface of what is truly needed to support migrant victims and survivors of domestic abuse. The time-limited support of the MVDAC, and its separation from the DVILR provides no clear pathway for migrant survivors to regularise their status”.

She explained that we know that the two schemes

“work best when they work together”.

Far from providing the long-term solution that she and others have been calling for, she fears that this reform

“is little more than a 3-month sticking-plaster and will discourage migrant survivors from coming forward”.

She calls instead for

“thoughtful investment to ensure that all migrant survivors have access to public funds, specialist domestic abuse support, and a route to regularise their status. Anything short of this simply won’t be enough”.

In view of these criticisms of the reforms outlined in the Minister’s letter, from both specialist front-line organisations and the DAC, can he please address their concerns in his response? Will he provide an explanation as to why there is still no long-term solution to ensure the adequate protection of migrant victim survivors of domestic abuse?

Finally, if the only real objection to the amendment is that it is not necessary, what harm would there be in simply accepting it, to show that the Government are at least listening to some of the concerns of front-line organisations and the DAC?

[Baroness Gohir (CB)]

My Lords, I rise to support Amendments 60 and 64 in the name of the right reverend Prelate the Bishop of Manchester, to which I have added my name. I declare my interests as set out in the register. The charity that I run operates a specialist domestic abuse service. I want to use my charity as an example of why these amendments are needed.

Muslim Women’s Network operates a national specialist helpline. It runs other projects in addition, but because it is not solely a domestic abuse service it has been excluded from stakeholder meetings by decision-makers, and also excluded from funding. For this reason, it is important to define the full breadth of specialist community-based domestic abuse services, which can then be used to hold decision-makers to account if they are excluded from being consulted, or when it comes to applying for funding. It can be quite short-sighted if organisations have that intersectional experience of cases. They also hold important data.

There is a huge funding gap, which has been mentioned. Barriers are put in the way particularly of small, specialist minority-ethnic organisations. We have seen this more in recent years under the current Government. As an example, there are very high thresholds to make grant applications. Thresholds can be so high that they exclude minority groups from putting in funding applications unless they form a coalition, which can be burdensome for a small organisation. The other problem this poses is that, if they form a coalition and there is a lead partner that gets a large chunk of money, most of that money goes out to the other partners in the coalition. That organisation then goes to, say, the charitable foundation sector to try to obtain funding and is told, “You’ve gone over the income threshold; you can’t apply for the funding because you have plenty of money coming in”. It is not considered that most of that money is going back out—this poses another barrier for small, specialist organisations.

These types of issues need to be considered to effectively commission relevant victim support services. I support the other amendments in this group, of course.

--- Later in debate ---

[Baroness Lister of Burtersett (Lab)]

My Lords, I offer some brief words in support of Amendment 96. Like the Domestic Abuse Commissioner, I was very disappointed with the response in Committee, which simply rehashed old arguments that I had already challenged. I have two practical questions. First, the noble Earl, Lord Howe, promised the long-awaited code of practice for parliamentary scrutiny by the spring. It may not feel very spring-like, but spring is passing and there is still no sight of it. Surely it should have been made available in time to inform our debate today. The Minister said it would hopefully be this spring, but he did not sound very sure. Can he give us a firm assurance that it will be made available this spring?

Secondly, whereas I had been told in a Written Answer that the also long-awaited protocol would be published in early 2024, all that the noble Earl, Lord Howe, could say in Committee was that it would be launched “later this year”. How much later? Why the delay?

Finally, I never received an answer to my much more fundamental question: how do the Government square their intransigent position on the firewall supported by the DAC, various parliamentary committees and all organisations on the ground with repeated ministerial assurances that domestic abuse victims/survivors must be treated as victims first and foremost, regardless of immigration status? As it stands, it is a case not of safety before status, as called for by the Domestic Abuse Commissioner, but of status before safety.

[Baroness Hamwee (LD)]

My Lords, I support the amendments to which the noble Baroness, Lady Bertin, has spoken. This was an issue that I came across only when preparing for Second Reading. I do not want to repeat her arguments, and I could not make them as well or as thoroughly as she has, but I was shocked to discover the problems that have arisen in connection with counselling and advice. I also support the firewall amendment from the noble Baroness, Lady Meacher. We have been here before many times, have we not?

Last week the previous Independent Anti-Slavery Commissioner, speaking to the committee reviewing the Modern Slavery Act, raised the interesting position of one law enforcement sector withholding information from, or not sharing information with, another law enforcement sector. She came to her conclusion, but I did not read her as having reached it entirely easily. I reached the conclusion that there should be a firewall for the reason put forward by the noble Baroness, Lady Meacher: imbalance of power—that is what it is about—between a victim and somebody to whom material is made available for abuse. These are very vulnerable victims. I have circled words such as “later this year” and so on, which the noble Baroness, Lady Lister, mentioned. I will not repeat them, but it would be good to make some progress on this issue.

Victims and Prisoners Bill

Baroness Lister of Burtersett Excerpts

Tuesday 12th March 2024 Lords Chamber

[Lord German (LD)]

My Lords, I rise with the leave of the House and at the request of my noble friend Lord Marks to oppose the Question that Clause 49 stand part and speak to the stand part notices for Clauses 50, 51 and 52.

Clause 49 would disapply Section 3 of the Human Rights Act in respect of any decision made under Chapter 2 of Part 2 of the Crime (Sentences) Act 1997. That chapter of the 1997 Act sets out a range of provisions concerning life sentences and sentences of detention during His Majesty’s pleasure, including minimum-term review for under-18s. For life prisoners, the provisions concern release on licence, termination of licences for public protection, recall for breach of licence conditions, the duration of licences, release at the direction of the Parole Board and removal of life prisoners from the United Kingdom.

The chapter is specifically extended by this Bill, in particular by Clause 41, to provide, in respect of public protection decisions, those considerations that the decision-maker is to be bound to take into account relating to such things as the risk of reoffending and the risk of breach of licence conditions. The clause includes, ominously, the provision under Clause 41(9):

“This section does not limit the matters which the decision-maker must or may take into account when making a public protection decision”.


Clause 44 provides for the Secretary of State to have the power to direct the referral of a prisoner’s case to a court—currently the High Court or the Upper Tribunal —as discussed on 26 February. Clause 48 makes further provision about the termination of the licences for life prisoners for public protection. For all these provisions, Clause 49 would disapply Section 3 of the Human Rights Act 1998.

Section 3 lies at the heart of the human rights protection afforded by the Human Rights Act. It governs the interpretation of legislation by courts and also, importantly, by public authorities, and so effectively by all relevant public decision-makers. It provides:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”.


Section 3 gives legislative teeth to the convention, requiring legislation to be compatible where possible. Clause 49 would disapply that crucial protection in relation to this chapter of the 1997 Act and any subordinate legislation made under it.

The Explanatory Notes, in paragraph 353, claim that this disapplication

“will apply the section as it is intended to be applied, and not use section 3 to alter the interpretation”.

In other words, the clause is intended to operate in a way that enables convention rights to be ignored or overridden; otherwise there would be no point in the disapplication. This represents a real and important threat to human rights and should be removed from the Bill.

Clause 50 would operate in exactly the same way in respect of the provisions of Chapter 6 of Part 12 of the Criminal Justice Act 2003 relating to the licences, release, supervision and recall of fixed-term prisoners. These provisions are to be amended by Clauses 42, 45 and 47 of the Bill. At present, this chapter of the Criminal Justice Act 2003 is subject to the protection of the interpretive requirement of Section 3 of the Human Rights Act. Clause 50 would remove that provision, and not just in relation to the new provisions in the chapter introduced in this Bill. As with the 1997 Act dealt with in Clause 49, it would remove it in respect of the whole chapter of the 2003 Act dealing with fixed-term prisoners.

Similarly, Clause 51 would disapply Section 3 in respect of the amended Section 128 of the LASPO Act. This amends the power to change the release test for release on licence in cases involving public protection.

Clause 52 deals with a similar issue. It is not approaching the interpretation of legislation in the light of the convention, but the different question of whether a person’s convention rights have been breached in connection with a prisoner release decision under the two chapters I have previously mentioned in the 1997 and 2003 Acts.

Paragraph 354 of the Explanatory Notes sets out how to govern any challenge on human rights challenge under the convention to a prisoner release decision. Where Clause 52 is offensive is in subsection (3), which requires:

“The court must give the greatest possible weight to the importance of reducing the risk to the public from persons who have committed offences in respect of which custodial sentences have been imposed”.


That provision would apply regardless of the length of the custodial sentence imposed, regardless of what harm was being risked to the public and regardless of the injustice to the offender or the offender’s circumstances or the risk to the offender’s health, family or prospects of rehabilitation. What is the “greatest possible weight”? That, effectively, means exclusive weight—the only factor the judge is to consider.

When the Explanatory Notes say:

“Requiring the courts to give the greatest possible weight to this factor reinforces the precautionary approach and means that public protection will be given appropriate consideration in any balancing exercise”,


they are disingenuous. The provision does not call for a balancing exercise. It requires courts not to consider questions of balance or appropriate considerations, but instead to prefer one factor over all others. That is pernicious and ought to go. Judges are perfectly capable of performing balancing exercises. They can and do give appropriate weight to public protection when they do so. They should not have their judicial function curtailed in this way. The clause should go.

[Baroness Lister of Burtersett (Lab)]

My Lords, here we go again. First, they came for the asylum seekers and then for the prisoners. Which unpopular and demonised group—to quote my noble friend Lady Chakrabarti—will be next to be deprived of some of the rights contained in the Human Rights Act?

As some of us have been arguing during the passage of the Safety of Rwanda (Asylum and Immigration) Bill, to deprive marginalised groups of their human rights in this way undermines the principle of universality at the heart of human rights. The noble and learned Lord, Lord Stewart of Dirleton, quoted back at us that it is

“a fundamental tenet of modern human rights that they are universal and indivisible”.—[Official Report, 14/2/24; col. 342.]

He then went on to try to justify the very opposite.

In answer to some general Oral Questions on our human rights legislation in June, the Lord Chancellor and Secretary of State for Justice emphasised the Government’s commitment to

“a human rights framework that … works for the British people”.—[Official Report, Commons, 27/6/23; col. 145.]

He later talked about our legislation delivering on the interests of the British people. Leaving aside whether universal human rights can be confined to the British people, it raises the question of whether prisoners no longer count as British people.

As it is, some of the briefings we have received, including from the Howard League for Penal Reform and the Prison Reform Trust, make the point that in the words of the latter,

“it is precisely in custodial institutions like prison … that human rights protections are most vital, because individuals are under the control of the state”.

The NAYJ, a member organisation which campaigns for the rights of and justice for children in trouble with the law, is particularly anxious about the implications for children in prison. The Law Society, the EHRC and the then chair of the JCHR have all expressed their deep concern about the diminution of human rights protection represented by these clauses. The EHRC, in particular, warns that there may be an impact on the UK’s international legal obligations.

The Constitution Committee sets out the government justification for these clauses in the human rights memorandum on the Bill, but invites us to seek further explanation from the Government as to what effect they intend to achieve with the disapplication of Section 3 of the Human Rights Act. According to the memorandum, the intention is to ensure that the HRA does not get in the way of the policy intentions of the release regime. In other words, it seems to be saying that human rights should not trump government policy. No evidence is provided to justify the need for this diminution of human rights, and of course the clauses were not subject to pre-legislative scrutiny.

In his response to the Second Reading debate, the Minister seemed to say that all the organisations expressing concern are making a mountain out of a molehill because Section 3 of the HRA is “a procedural provision only”. He argued that it gives the courts an

“unusual power to reinterpret what Parliament has said in a manner that may not have been and probably was not Parliament’s original intention so as to render a particular provision compatible with the convention”.—[Official Report, 23/12/23; col. 2135.]

This, he suggested, was a “neutral” description of the function of Section 3.

I am grateful to Amnesty for its help in making sense of what the Minister said, although it would be the first to emphasise that its analysis is in line with that of the independent Human Rights Act review, established by the Government. It questioned whether this was a “neutral” interpretation of the role of Section 3. The reference to reinterpreting legislation seemed to suggest that there is one legitimate act of interpretation, which is then challenged by a second questionable one under Section 3. But this interpretation is itself highly questionable. I am advised that Parliament intended for Section 3 to be used in the way that it is. There is no reason to think that Section 3 interpretations lead to interpretations that are “probably not” in line with Parliament’s original intention, as confirmed by the Human Rights Act review, even if that was not the view of one member of the commission cited by the Minister.

More practically, and I think for the first time in this context, the Minister suggested that it has been a difficult section to apply, with the case law having “gone all over the place” and the introduction of uncertainty where the Government want certainty. I am advised that while this may have been true of when Section 3 was first brought into force—although “all over the place” is a misleading description—that period has long passed and the legal issues around it have not substantively changed for the past decade or so. As the Minister acknowledged, it has “settled down more recently”. So having been in effect for 20 years, it is not at all clear why its continued function would create the kind of complexity and uncertainty the Minister fears.

If the Minister cannot come up with a more convincing case for the disapplication of Section 3 from a group of citizens for whom the protection of the Human Rights Act is especially important, given their relationship to the state, I certainly think that these clauses should not stand part of the Bill. I have yet to hear any argument that justifies this further breach of the principle of the universality of human rights.

[The Lord Bishop of St Edmundsbury and Ipswich]

My Lords, my right reverend friend the Bishop of Manchester regrets that he cannot be here today to speak to the amendments to which he has put his name.

The basis of our opposition to Clauses 49 to 51, to echo points made by the noble Lord, Lord German, and the noble Baroness, Lady Lister, is that human rights need to be applied universally, even when disapplication might seem expedient. We know that, when people are marginalised, it is then that human rights protections are most necessary and, as such, the disapplication of rights to prisoners, who rely on independent courts and the justice system to guarantee basic minimum standards of fairness and respect, is particularly egregious. The Law Society has warned that these clauses

“significantly weaken the system of human rights protections in the UK”.

My right reverend friend and I add our voices to these concerns.

Victims and Prisoners Bill

Baroness Lister of Burtersett Excerpts

Committee stage
Wednesday 31st January 2024 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I am grateful for that intervention and clarification. Perhaps I could explain why the Government do not think that this is a positive way to go.

The first point is that the present code is still a statutory code. It is grounded in statute, authorised by statute, has been subject to negative resolution in Parliament and therefore has a legal status. The Government’s position is that putting the code in a schedule to the Bill does not materially increase its legal enforceability, or indeed its legal status. Therefore, there does not seem to the Government to be a compelling reason to do it in either case. The Government would consider the present code to be subject to judicial review. There could be a legal challenge; in fact, the legislation on the face of it accepts that the code is admissible in legal proceedings, and so forth. So we already have a statutory code, and we are dealing with quite a fine point—whether putting in a schedule really has any material effect. The Government’s position is that, certainly legally, it has no effect—but in practice there is a very significant downside.

The downside is that what you have on the statute is no longer user-friendly and no longer contains the information that victims want when they reach for the code and want to know what to do, where to go, what the telephone number is and what the website is that they need to consult. You cannot put that in the statute, and I invite noble Lords to compare the code as currently reproduced in the amendment we are discussing with the code as published. The latter sets out 12 rights very clearly, has boxes that explain various things, tells you where to go, elaborates on the rights, et cetera, all in very user-friendly language. Either you abandon that—in which case, you abandon the signposting and everything we were discussing in the previous group—or you have two documents. And that, in the Government’s view, is not very satisfactory. Although we all have touching faith in the interest of the general public to read long schedules in the statutes that we pass, that is not actually the way to raise awareness. You raise awareness through other means.

[Baroness Lister of Burtersett (Lab)]

I am sorry to intervene. I have been listening and have found the arguments very persuasive. If the Government are saying it does not make any difference to put it into the statute itself—and yet I know from briefings I have received that there is a very strong push from bodies on the ground saying we do need the code in the statute—why can we not have the statute and then a user-friendly version of it? That does not seem to me such a terrible thing.

[Lord Bellamy (Con)]

The Government’s view is, first, that there is no need to go down this route at all, because the present structure of the code under the existing legislation creates statutory duties, obligations and rights that can be enforced by one route or another. If you burden the statute with this, the Government’s position is that it has no real effect, either in law or in any other way, but does have the complication that you must have—as I think the noble Baroness is conceding —at least two documents. That, again, overburdens the system, and the document that is trying to be user-friendly and communicative may turn out to be more difficult to draft, if you are always stuck with the framework of what is in the statute. So it gets us nowhere and simply complicates life.

Victims and Prisoners Bill

Baroness Lister of Burtersett Excerpts

2nd reading
Monday 18th December 2023 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, a recurrent theme so far today, in the Commons and in briefings, including from the children’s and domestic abuse commissioners, has been that the long-overdue victims part of this Bill represents a real and welcome opportunity but that it will be a missed opportunity if it does not strengthen the rights of children and domestic abuse victims and survivors. The Children’s Commissioner and the children’s coalition have spelled out a number of measures that are needed, in the commissioner’s words,

“to truly transform the response to child victims”.

These would, among other things, give due recognition to children’s agency, needs and rights and ensure specific appropriate support for children affected by violence, abuse and exploitation, including specialist advocacy.

Children are all too often the forgotten victims of domestic abuse. A number of reforms are needed for domestic abuse victims more generally if, in the words of the domestic abuse commissioner, DAC, the Bill is fully

“to realise the change needed to meet the needs of victims and survivors”.

There has been widespread welcome for the Bill’s introduction of a duty to collaborate and related duties, but the DAC, the Justice Committee in its pre-legislative scrutiny and domestic abuse organisations, including Women’s Aid and Refuge, have all raised concerns about the provision of heavily used specialist community-based services and, in particular, the precarious situation of “by and for” services, which are crucial to the adequate support of members of minoritised communities.

They have also emphasised the need for adequate and sustainable funding for these services. The Justice Committee observed:

“Additional funding is required to enable services to meet demand and allow the Victims Bill to live up to its ambitions”.


The DAC has recommended a duty on national government to

“meet the needs of minoritised victims and survivors through funding special ‘by and for’ services directly”,

which her mapping exercise has showed are

“by any measure, the most effective services for victims”.—[Official Report, Commons, Victims and Prisoners Bill Committee, 20/6/23; col. 7.]

Surviving Economic Abuse, SEA, with which I worked closely on the Domestic Abuse Bill, argues that this Bill

“can do more to recognise economic abuse, support economic abuse victim-survivors to ensure those who seek a criminal justice response are supported through the system and ensure all economic abuse survivors, whether they seek a criminal justice response or not, are supported to establish their economic safety and rebuild lives”.

Its research underlines the devastating impact that economic abuse can have. I hope that we can take forward some of its specific proposals in Committee, including the need for mandatory training of members of criminal justice agencies, as emphasised by Women’s Aid, London’s Victims’ Commissioner and the noble Baroness, Lady Brinton.

SEA observes that migrant victim survivors can be particularly vulnerable to economic abuse and supports proposals from others, including the DAC, designed to protect migrant domestic abuse victims. This was a gaping hole in the Domestic Abuse Act that the Government refused to fill despite the best efforts of your Lordships’ House. As we have heard, there are two main issues here: the impact of the no recourse to public funds rule and the need for a firewall between Immigration Enforcement and statutory services for domestic abuse victims. The Government’s negative response to attempts to address these issues in the Commons by my honourable friend Sarah Champion, to whom I pay tribute, was disappointing.

I also pay tribute to Southall Black Sisters, the Latin American Women’s Rights Service and other organisations with which they collaborate for their tireless efforts on behalf of migrant victims and survivors. SBS is delivering the official support for the migrant victims pilot scheme to support women with no recourse to public funds facing domestic abuse. This pilot was supposed to provide the information the Government said they needed before deciding on a longer-term solution, even though all involved were adamant that sufficient evidence already existed. Yet here we are, nearly three years on and with the benefit of two independent evaluation reports—one of which was funded by the Home Office—which made clear what was needed in the longer term, but instead of a long-term solution to the problems highlighted by the pilot, we have a further extension to 2025. Can the Minister explain why?

The pre-legislative scrutiny report called for an immediate end to data sharing between the police and the Home Office for immigration enforcement purposes and the introduction of a complete firewall. I have been struck by the range of organisations supporting the strong and persistent call for a firewall from the DAC. For example, Victim Support argues that, without it, victims with insecure immigration status

“will be denied access to safety, support and justice”.

I also seek clarification on the intention behind Clause 2(6), which allows for the exclusion of certain groups from the protection of the victims’ code. Researchers into forced migrant survivors of sexual and gender-based violence at Birmingham University have raised fears that this might be used to exclude such victims, deemed “illegal” migrants under the Illegal Migration Act. I hope that is not the case.

When introducing the Bill’s Report stage in the Commons, the Minister said that the Government wanted

“to draw the definition of those entitled to support under the victims code as widely as possible” —[Official Report, Commons, 4/12/23; col. 91.]

in the interests of the Bill being “inclusive”. Yet so long as it excludes migrant women from the protections it provides, it cannot claim to be inclusive. No doubt the Minister will repeat the Government mantra that they see migrant domestic abuse survivors first and foremost as victims. However, unless they accept amendments that would explicitly include migrant women under the Bill’s protections, they cannot claim to be putting “safety before status”, as called for by the domestic abuse commissioner.

Finally, like other noble Lords, I was dismayed to see the clauses in Part 4 which will, like the Rwanda Bill, undermine the universality of human rights by excluding from the full protection of the Human Rights Act a politically unpopular group—in this case prisoners. What possible justification can there be for including this regressive step—of grave concern to many bodies from Amnesty, Liberty and the Howard League for Penal Reform to the Law Society, the EHRC and the Joint Committee on Human Rights—in what was originally a Bill purely about progressing the rights of victims? The Minister asked us to look at this section through the lens of victims. In what way will this help victims?

Nevertheless, thank goodness we have a Minister who engages with noble Lords. I look forward to answers to our questions.

Illegal Migration Bill

Baroness Lister of Burtersett Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

Moved by

[Baroness Lister of Burtersett]

57C: Clause 8, page 11, line 18, leave out “and (3)” and insert “, (3) and (3A).”
Member's explanatory statement
This amendment, and another in the name of Baroness Lister, would amend the Immigration and Asylum Act 1999 to create a right of appeal against a decision to refuse an application for support under section 95A of the Act, or to stop support under that same section.

[Baroness Lister of Burtersett (Lab)]

My Lords, in moving Amendment 57C, I will also speak to Amendments 57D to 57G. I am grateful to the right reverend Prelate the Bishop of Durham and the noble Baroness, Lady Hamwee, for their support. These are very much probing amendments and I apologise that I did not make that clear in their explanatory statements. They are focused on the financial and accommodation support available to those deemed inadmissible but still resident in the UK, and on associated appeal rights.

I am grateful to the Refugee Council for its help with these amendments. Because they refer to existing legislation, the amendments are quite complex and, given their probing nature, I do not therefore intend to go into the details of what they would achieve. I am sure that will be a great relief to those who want to get to their dinner. Instead, I will explain the context of the amendments and then set out a list of questions for the Minister.

Despite the Government’s intention to deport large numbers of asylum seekers swiftly, the consensus outside government is that, in the absence of adequate third-country agreements, many of those deemed inadmissible will also be unmovable in reality as they cannot be returned to their country of origin, given that their asylum claims have not been assessed. This, according to the very helpful joint briefing we received from a large number of civil society organisations,

“will create a large and permanent population of people who will live in limbo at public expense for the rest of their lives, without any hope of securing lawful status”.

The Refugee Council, Refugee Action, Praxis and the No Accommodation Network describe it as “permanent purgatory”.

In the continued absence of the official impact assessment, the Refugee Council’s assessment estimates that by the end of the three years following the provisions coming into effect, between 161,000 and nearly 192,700 people will be living in this purgatory. They will not have the right to work—the subject of a later amendment —and will not be eligible for mainstream benefits or housing, and thus will be at great risk of exploitation and destitution.

Refugees and people seeking asylum in the UK are already at serious risk of exploitation. British Red Cross and UNHCR research found that people refused asylum face a particular risk of exploitation, as they have few support options. The research found evidence of people experiencing destitution, homelessness and various forms of exploitation, including sexual exploitation. The BRC warns that the number of people experiencing destitution and exploitation will increase if the Bill is implemented and if people deemed inadmissible to the UK asylum system are denied access to support.

According to the joint civil society briefing:

“The physical and mental health implications of this would be unprecedented”.


Health organisations have repeated this warning and the Royal College of Psychiatrists has underlined the serious harm to mental health that living in immigration limbo is likely to cause. The BRC reports, on the basis of its experience with those already deemed inadmissible, that living in limbo without adequate support has devastating impacts on people’s mental and physical health.

It is therefore crucial that we are clear as to what financial and accommodation support will be available to those living in limbo. Key here is what access they will have to Section 4, Section 95 or Section 98 support under the Immigration and Asylum Act 1999. I have a number of questions for the Minister that refugee organisations have not been able to get the answers to.

First, Section 4 of the 1999 Act is mostly used for supporting those who are destitute, having had their asylum claim refused, and where there is a barrier to them returning home. It can be provided only for accommodation and financial support combined, not for financial support alone. The guidance and regulations mostly reflect these circumstances. Is the Minister confident that the existing regulations for Section 4 will cover the circumstances of someone waiting for removal having had their asylum claim deemed inadmissible under the Bill, given that, for support purposes, they will be treated as failed asylum seekers?

Secondly, looking at the ASF1 that people need to fill in to apply for Section 4 support, it is not clear how someone would use it to apply for support when their claim has been deemed inadmissible. Given that the Bill could be in force this summer if the Prime Minister gets his wish, what plans does the Home Office have for updating the form?

Thirdly, as a result of the Bill it is likely that many more people will be reliant on Section 4 for accommodation and financial support. Currently, most asylum seekers are supported under Section 95, which is available to those awaiting a decision on their claim and facing destitution. Section 98 allows people who would otherwise be destitute to be supported pending a decision on their eligibility for Section 95 support. I said that this was a bit complicated, and I apologise. The equivalent does not exist for Section 4, which will become the main means of support. Are Ministers preparing to use the regulation-making power in Section 4 to create such a scheme? If not, what is proposed?

Finally, can the Minister clarify whether they intend to use the provision within the Immigration Act 2016 to repeal Section 4 and introduce a new Section 95A as a replacement? If the Home Office intends to make that change, when does it intend to implement the 2016 Act changes, and will there be consultation on the relevant regulations and guidance that will need to be put in place? Unlike Section 4 and Section 95, Section 95A decisions would not attract a right to appeal. Given that circumstances are now very different from when Parliament passed the 2016 Act and that it will be a completely untested system, will the Home Office accept an amendment that would create the ability to appeal a refusal or discontinuation of support?

Nationality and Borders Bill

Baroness Lister of Burtersett Excerpts

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Lord Horam (Con)]

Yes, I do acknowledge the differences, which is why I said that there is no guarantee at all that, even if this is tried, it will work in British circumstances. All I am saying is that it worked in Australian circumstances, the Government are clearly interested in this and, as I say, it would be a dereliction of duty if they did not put this among their options and pass the legislation that enabled us to try this out. That is where we are now.

I point out that, after the success of this policy in Australia, the Australian Government were enabled to expand the legal routes for asylum seekers to go to that country because it ceased to be controversial: immigration was less controversial as a consequence of the anti-boat policy being successful. The fact is that, as I have said before in these debates, if the public do not buy into the policy, you will have problems in persuading them to have more immigration. If they buy into it because they can see that you are controlling your borders, they have a more relaxed attitude to immigration and accept higher levels of it because they can see that they are in control of both the amount and the type of immigration coming in.

Therefore, there is a prize at the end of this for those who genuinely want to have more immigration, frankly, than we have at the moment, and if you can seem to be in control. What worries people is if you are not in control—if they can see clearly that people are behaving illegally getting here, jumping the queue and all the rest of it. In view of what the Whips on both sides have said, I do not want to go on any longer, but we ought to consider this in a rational and sensible way, as a clear option that any responsible Government of whatever kind should pursue; and I point out that, in Australia, for example, it does have all-party support.

[Baroness Lister of Burtersett (Lab)]

My Lords, we have obviously been reading different things because everything that I have read and heard about the policy in Australia suggests that it is far from successful, and certainly not for asylum seekers themselves.

[Lord Horam (Con)]

If the noble Baroness reads the evidence given by the Australian high commissioner to the House of Commons—evidence-taking on a section of this Bill—she will find that much of what I have said is corroborated there.

[Baroness Lister of Burtersett (Lab)]

I tend to give more credence to people on the ground, but there it is.

I share concerns that have already been raised about potential health and human rights implications and the general dehumanising nature of a power that allows the British Government, in the words of the UNHCR,

“to externalise its obligations towards refugees and asylum seekers to other countries with only minimal human rights safeguards”.

No doubt, we are talking about poorer countries on the other side of the world to which asylum seekers will be moved like cattle, as the noble Baroness, Lady Jones, said.

I want to raise a few questions; some have been covered so I will not repeat them but build on them. First, with regard to children, who a number of noble Lords have mentioned, in the Commons the Minister assured Caroline Nokes, a former Immigration Minister, that unaccompanied children would not be transferred for offshore processing. When she asked about accompanied children, and about what would happen to a child who turned 18 during the process of applying for asylum, answer came there none. I hope that there will be an answer to those questions today.

Can the Minister also say what would happen to a child whose age is disputed? When we reach that group of amendments—probably around midnight, so it will be great scrutiny—we will hear of the widespread fears among medical and social work professionals and children’s organisations that Part 4 of the Bill will lead to many more children being wrongly assessed as adults. If so, I fear that many unaccompanied children could be transferred because it is not believed that they are, in fact, children. I would welcome the Minister’s thoughts on that. Can she assure us that no young person will be transferred while the age-assessment process is going on?

Secondly, building on what the right reverend Prelate and the noble Baroness, Lady Stroud, said, the UNHCR observes that the Bill

“is silent on what, if any, legal obligations the United Kingdom would consider itself to have”

towards asylum seekers once their asylum claims have been dealt with. It expresses concern that there is nothing in the Bill that confines the application of the changes to extraterritorial processing, which is the stated purpose in the Explanatory Notes.

Detention Action warns that, even if a third country’s authorities recognised the asylum seeker as a refugee, the Bill provides no power for the UK to re-admit them or grant them any form of leave. Can the Minister say whether this interpretation is correct? If it is not, can she assure us on the record that those who are deemed to qualify for refugee status will be readmitted to the UK—that is, the country from which they sought refugee protection—and explain under what legal power in the Bill they would be so readmitted? If Detention Action’s interpretation is correct, this is not simply about offshore processing, which is a euphemism, but, even more shockingly, it is about the Government wiping their hands of all responsibility for those who qualify for refugee protection via a claim for asylum—not short-term offshore processing but long-term deportation. If so, the case for Clause 28 and Schedule 3 not standing part of the Bill is that much stronger.

[Lord Paddick (LD)]

My Lords, the Government’s position in justifying this and other measures in the Bill rests on the UK’s so-called excellent track record on refugees, and the Minister has repeatedly pointed to the UK’s track record on resettlement schemes. The UNHCR thinks differently:

“Resettlement programmes, while welcome, are, by themselves, an inadequate means for fairly distributing global responsibilities towards refugees and sharing the burden currently shouldered by major host countries.”


It goes on to give the facts about the numbers who are making their own way from areas where people are being persecuted. It concludes:

“For all of these reasons, the Bill undermines, rather than promotes, the Government’s stated goal of improving the United Kingdom’s ‘ability to provide protection to those who would be at risk of persecution on return to their country of nationality.’”


As the noble Baroness, Lady Jones of Moulsecoomb, has just said, one of the reasons for offshoring is to temporarily house asylum seekers while their claims are being considered. Would the Minister like to comment on an article in the Times on Saturday that claimed that Priti Patel, the Home Secretary,

“wants to … reject Channel migrants’ claims for asylum within a fortnight of them reaching Britain”?

The story claims that

“government lawyers raised concerns over the plans”

but the Secretary of State

“believes a fortnight is a ‘reasonable’ window for immigration officials”

to make such a decision. According to the article, a Home Office spokesperson told the newspaper:

“We do not comment on leaks”,


so I ask the Minister a different question. Does she believe that two weeks is a reasonable timeframe to consider asylum seekers’ claims? If so, there would not appear to be any need for offshoring.

The Bill goes from bad to worse. As Amnesty and Migrant Voice put it,

“the prevailing attitude emanating from the Home Office … appears determined by any means and at almost any cost to seek nothing more than avoiding its responsibilities while demanding other countries should take theirs. This is a hopeless prescription from which no good can possibly come”.

The Home Office is seeking the power not only to remove an asylum seeker to any country while it considers their claim, but to do so and then tell that country, “If you think they are a refugee, you take them. It’s not our problem any more”. I do not know how the Government think they can persuade another country to take the UK’s unwanted asylum seekers on either a temporary or a permanent basis. According to Amnesty and Migrant Voice, offshoring by Australia effectively excluded legal, judicial, medical, humanitarian and media scrutiny; has cost a fortune—over £500 million a year, according to the British Red Cross—and, contrary to what the noble Lord, Lord Horam, seems to have seen or heard, has failed to stop those seeking asylum, including those arriving in Australia by boat.

I understand that academic evidence on the whole offshoring scheme was given by a university in Australia to the Public Bill Committee in the other place that appears to contradict the evidence that the Australian High Commission gave to the same Committee, so there is clearly a serious difference of opinion as to whether the scheme is successful. Apparently, the independent academic assessment of the scheme thinks it is a failure. The UNHCR says:

“As UNHCR has seen in several contexts, offshoring of asylum processing often results in the forced transfer of refugees to other countries with inadequate State asylum systems, treatment standards and resources”,


which amendments in this group seek to address.

“It can lead to situations in which asylum seekers are indefinitely held in isolated places where they are ‘out of sight and out of mind’, exposing them to serious harm … UNHCR has voiced its profound concerns about such practices, which have ‘caused extensive, unavoidable suffering for far too long’, left people ‘languishing in unacceptable circumstances’ and denied ‘common decency.’”


I am hoping that this apparently unworkable and morally repugnant provision is yet another paper tiger, designed to appeal to the Daily Mail in deterring genuine asylum seekers, but that it is no more than propaganda. Clause 28 and Schedule 3 should not be part of the Bill. All the other amendments in this group are well- meaning, but they are window dressing.

--- Later in debate ---

[The Lord Bishop of Durham]

The problem is that the Minister only said, “unaccompanied children”, and did not refer to children in families. I am sorry, but we do not have the confirmation that this addresses the whole range of scenarios—such as families being split up—which we have raised but have not been answered.

[Baroness Lister of Burtersett (Lab)]

Before the Minister replies, I also asked some questions about children and, more specifically, about when they turn 18 and whether their age will be challenged.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I have said I will write, but to be more explicit than my honourable friend was in the Commons might risk exploitation on routes taken by children. Therefore, this is as far as I will go today. I will lay out the various safe and legal routes through which children can come to this country and reiterate what my honourable friend said in the House of Commons.

[Baroness Lister of Burtersett (Lab)]

I am very sorry but the noble Baroness is not answering the right reverend Prelate’s question. It is not about safe and legal routes but about who will and will not be offshored, which is an awful term. She seems to be saying that children who are accompanied, who are in families, could well be offshored. Is that correct? The Minister in the Commons refused to answer the question and avoided it; I am afraid that is what the Minister is doing here.

[Baroness Williams of Trafford (Con)]

My Lords, I am not trying to avoid it; I am saying that that is about as far as I can go. However, I will try to outline any further detail that I can in writing to noble Lords. Noble Lords will know—

--- Later in debate ---

[Baroness Lister of Burtersett (Lab)]

My Lords, I am sorry, but a whole range of noble Lords asked a question, in different ways, about what happens to the asylum seekers if they are granted refugee status in the country to which they have been offshored. Are they allowed back into this country or are they just left there? If they are left there, they have, in effect, been deported.

[Baroness Williams of Trafford (Con)]

My Lords, I do not have the answers before me, so I will write on the questions that I have not answered, if that is okay with the noble Baroness.

--- Later in debate ---

In setting out the arguments this evening, this gives my noble friend the Minister the chance to set out precisely why the Government are seeking to change tack, as set out in Clause 31, setting aside the case law that has curried favour in the law courts on both sides of the border—in England and Scotland—for a considerable number of years.

[Baroness Lister of Burtersett (Lab)]

My Lords, I will speak to Amendment 105 in my name and those of the noble Baroness, Lady Coussins, who cannot be here tonight, the right reverend Prelate the Bishop of Gloucester and the noble Lord, Lord Paddick, to whom I am grateful. I also thank Women for Refugee Women and ILPA for all their work on this amendment.

The amendment would remove the narrow restrictive and requirement in Clause 32 that, in order to qualify under the “particular social group” grounds of persecution for recognition as a refugee under the convention, two conditions must be met. The amendment would replace this with an either/or condition. As I will explain, this would be in line with international standards and UK case law.

This is a small amendment, but it is significant, as the UNHCR has made clear. The UNHCR explains that Clause 32 is one of a

“series of changes that would make it more difficult for refugees who are admitted to the UK to be recognised as such.”

The case for the amendment is, in effect, set out in its detailed legal observations, which have been invaluable to our scrutiny of the Bill. The UNHCR warns that narrowing the definition of “particular social group” in the way that the clause does

“could exclude some refugees from the protection to which they are entitled … In the UK and other jurisdictions, the particular social group ground has proved critical in the protection of those with claims based on gender, sexual orientation, gender identity, status as former victims of trafficking, disability or mental-ill health, family and age.”

This view is endorsed by the Bingham Centre, which warns:

“The result will inevitably be to refuse protection to people who, as a matter of international law, are refugees.”


It picks out this clause as one of a number that are particularly troubling to it from a rule of law perspective.

The UNHCR explains the origins of the two conditions and why it has recommended that they should be treated as alternative, rather than cumulative, tests. The argument was endorsed by the late Lord Bingham, acting in his judicial capacity, when he ruled that the cumulative approach taken in Clause 32 was wrong because

“it propounds a test more stringent than is warranted by international authority.”

Thus this approach, the UNHCR points out, has been affirmed in the UK courts over an EU interpretation. I cannot resist observing that it is rather odd that a Government committed to taking back control from the EU is so keen to apply an EU interpretation that has been rejected by the British courts. Indeed, on the previous group, the Minister said that our starting point should be that we had left the EU, so could he perhaps explain why that does not apply to this clause?

In their briefing, Women for Refugee Women—WRW —and ILPA include an example, taken from Garden Court Chambers barristers, of what this might mean:

“a trafficked woman would need to show not only that her status as a trafficked woman is an innate characteristic”—

one shared with other members of a group—

“but also that trafficked women as a group are perceived as having a distinct identity in her country of origin. The latter is of course much more difficult to establish than the former because this is judged by the perceptions of the society in her country, and it can be very challenging to find objective evidence on women as a distinct group.”

WFW and ILPA also point out that there was “no pre-legislative consultation” on this clause because it was not included in the New Plan for Immigration. Can the Minister explain why this is the case? Moreover, the equality impact assessment on the Bill, which has been described as “superficial and inadequate” by barristers at Garden Court Chambers, fails adequately to assess the impact of the change on groups in vulnerable circumstances.

As I have already noted, the UNHCR has warned of the likely implications for a wide range of such groups. I particularly draw attention to how this clause is likely to have an adverse impact on women fleeing gender-based persecution—a group that the Government claim to care about. As I made clear on an earlier amendment, it is one of a number of such clauses that have to be viewed in the context of the failings that already exist. According to WRW and ILPA,

“Over the years, there has been substantial research on the failures of the Home Office in delivering a fair asylum process, and on the reasons why many women who flee gender-based persecution may be wrongly denied protection.”


Most recently, as I noted last week and gave the Minister some weekend reading on, the British Red Cross has published research that details experiences that

“highlight the distrust and disbelief women can face when discussing traumatic experiences of violence”,

especially, but not only, when interviewed by men. One survivor’s words are recounted:

“you feel so low and you feel so degraded and you’ve been violated and you were [telling] your story, you were expecting to be heard and to have someone who shows you some form of sympathy.”

In the Commons Public Bill Committee, the Government justified their position by asserting that the new clause was necessary to bring certainty to an area bedevilled by conflicting authority. But ILPA and WFW give that argument short shrift, pointing out:

“There is no conflicting authority: the UNHCR and the senior UK courts have a clear and constant interpretation. It is the Government that seeks to depart from this shared interpretation of the Refugee Convention, and it does so without warrant or proper justification.”


So can the Minister provide a more convincing justification today of a clause that, in the words of Women for Refugee Women and ILPA

“reverses case law of senior UK courts, contravenes UNHCR standards, and reinstates an erroneous EU law standard”?

If not, will he agree to this amendment?

[Baroness Ludford (LD)]

My Lords, all of these clauses seek to restrict access to the protection of the refugee convention. I will speak to Amendments 103 and 104 to Clause 31 and Amendment 111 to Clause 37, which are all in the name of the noble Lord, Lord Dubs, and which I have co-signed. However, I share the view of my noble friend Lady Hamwee and the noble Baroness, Lady Chakrabarti, that all of these clauses should in fact be removed.

The problem with Clause 31 is that it changes the standard of proof for the test of whether a person is a refugee. It creates two limbs of the test and changes the bar from “reasonable likelihood” to

“on the balance of probabilities”.

Although the refugee convention does not prescribe the standard of proof, UNHCR’s handbook says:

“The requirement of evidence should … not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself.”


So, for 20 years, the UK courts, including the Supreme Court, have applied a “reasonable likelihood” standard of proof in a composite and holistic manner.

Clause 31 overturns this established interpretation of the law by dividing the overall test into a series of sub-questions and applying different standards of proof to different limbs of questioning, to require the person to prove on a balance of probabilities that they fear persecution and the decision-maker to revert to a test of reasonable likelihood in assessing whether the person would face persecution and lack state protection. It is quite a mishmash, and a complex and confusing one—not least for already burdened caseworkers. As we have heard so frequently in this Committee, if the Government really want to fix a broken asylum system, why are they making everything more complex and building in delay?

As the Bingham Centre points out, Clause 31

“allows for rejection of a person as a refugee because they failed one of the steps”

imposing that higher hurdle,

“whereas if the test was taken in its totality, the person may have been accepted as a refugee.”

The process may well lead to exclusion from sheer error because of all these complex, different bits of the test. Either the JCHR Amendments 103 and 104 should be accepted, or Clause 31 should be deleted.

On Amendment 111 to Clause 37, as the noble Lord, Lord Dubs, has said, we object to the lowering of the threshold for regarding a crime as particularly serious such that a person can be expelled. It is designed to—and will—exclude many more people from the protection of the refugee convention. Not only is the threshold sentence reduced from two years to 12 months but it changes the rebuttable presumption of “particularly serious” into an unchallengeable assertion.

This is disproportionate; a blanket exclusion is incompatible with the refugee convention, which envisages a crime that is a major threat and expulsion as a last resort. Bear in mind that the Bill seeks to impose a four-year sentence for the mere act of arriving in the UK without permission, which most refugees have to do. That gives you a measure of the lack of proportion in what is supposed to be a serious crime under the remit of the Bill; I am not validating or endorsing any crime, but under the refugee convention it has to be “particularly serious”, and the Government are departing from that.

--- Later in debate ---

[Baroness Lister of Burtersett (Lab)]

I am not a lawyer, so I rise with some trepidation, but it seems to me that it suits the Government’s purpose to interpret it in this way, because it means that fewer vulnerable groups—particularly women—fleeing violence will receive refugee protection as a result. It is no clearer than the interpretation that it is overruling, and it seems odd. It is quite rare for the Government to pray in aid an EU interpretation over that of their own courts. Maybe one of the lawyers opposite will be able to give a better response than I can, but I am afraid I am not convinced, because it seems as though that is why this is being done—it is nothing to do with clarity. If this legislation had clearly put in law Lord Bingham’s interpretation, that would be clear. So why the EU interpretation, which is, as numbers of authorities have said, likely to mean fewer vulnerable people—particularly women—receiving the refugee protection to which they are entitled under the convention?

[Lord Wolfson of Tredegar (Con)]

My Lords, I set out why we think this interpretation is correct. I am certainly not saying that we are using this interpretation because it is the EU one; I was referring to the EU to make the point that, with respect, it is very difficult to challenge this as somehow an unfair, unworkable or inapt interpretation when it is actually reflected in the EU jurisprudence. I absolutely take, with respect, the noble Baroness’s comments about the importance of the equality impact assessment for the policies being taken forward through the Bill. The public sector equality duty is not a one-off duty; it is ongoing, and I want to provide reassurance now that we will be monitoring equality impacts as we put the Bill into operation and as we evaluate its measures and, indeed, those in the wider new plan for immigration.

I assure the right reverend Prelate the Bishop of Gloucester that we are well aware of the particular issues facing women and survivors of gender-based persecution and, indeed, the asylum system is sensitive to them. The interview guidance contains clear instructions to interviewers in this area. We seek to offer a safe and supportive environment for individuals to establish their claims. Despite references to the decision of this House in its judicial capacity, in Fornah, those comments were obiter. I underline that there is no authoritative definition in case law of what is a “particular social group”, and that is why it is absolutely right for this Parliament to define it in this clause.

Clause 37 amends the definition of a “particularly serious crime” from one which is punished by imprisonment of two years or more to one which is punished by imprisonment of 12 months or more. To be clear, imprisonment means an immediate custodial sentence—I am not sure that any noble Lord made that point, but it is important. Indeed, it is why I brought the handbook: if you receive a suspended sentence, you are not caught by its provisions—going back to the underlying legislation. Furthermore, not only does it have to be an immediate custodial sentence of 12 months or more but the second limb has to apply—namely, whether the individual is a danger to the community—and that is rebuttable.

We cannot accept Amendment 111 because it would potentially allow dangerous foreign national offenders to remain here, putting the public at risk. If somebody has been sentenced to a year or more in prison, we should not enable them to second guess the verdict of the jury or the decision of the court by allowing them to bring into play again whether they were such an offender. We seek to allow only the second bit of it to be rebuttable; namely, whether they pose the relevant danger.

I think I have answered all the questions that have been asked. On the last point put by the noble Lord, Lord Rosser, at the heart of this lies not some dinner party conversation but a lack of clarity in the current case law and standards, which make it harder for decision-makers to make accurate and efficient decisions; that is it.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I am surprised that anyone in a democracy is troubled by a Government listening to the people and putting forward legislation which, first, delivers on a manifesto commitment, and, secondly—as I have said and I repeat —is entirely consistent with our international law obligations. There is nothing wrong and everything right with each signatory to the refugee convention interpreting its obligations under it; we have now been around that point on several occasions.

[Baroness Lister of Burtersett (Lab)]

I am sorry to keep bobbing up, and I appreciate what the Minister said about monitoring the equality impact of this legislation, but does he accept that Clause 32 means that a woman fleeing gender-based violence with good grounds for being accepted as a refugee is less likely to be so accepted? I do not believe that that is what the British people voted for.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am not trying to be difficult here. What it means is that a woman, like anybody else, who has a proper claim under the refugee convention will find refuge in the UK. That is what we are seeking to do. By having a clearer set of definitions, we are trying to make sure that it will not depend on the happenstance of who the decision-maker is and the way the test is applied.

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[Baroness Hamwee (LD)]

My Lords, my name is on this amendment. The noble Baroness, Lady Hollins, knows whereof she speaks, so I shall not attempt to do more than support her. To me, this is a matter of professional judgment, which she has brought, but also of common sense. What I hope is my common sense has been informed by what I have heard over quite some years, including, very significantly, in the debate that we had last week. It is clear that in the UK—it may in this context be England and Wales—the systems, if they can be called systems, for assessing the health needs of asylum seekers are patchy and often inadequate.

It is also common sense that assessment should start from a solid, informed base, incorporating the best, up-to-date understanding and experience, so a review is important. So is consultation with those who are expert in the field. I support the amendments.

[Baroness Lister of Burtersett (Lab)]

My Lords, I support these amendments, to which I was pleased to add my name. I thank the Royal College of Psychiatrists and the Helen Bamber Foundation for their help.

Many of us have already highlighted how provisions in this Bill will seriously harm the mental and physical health of people seeking asylum, through, for example, leaving group 2 refugees living in limbo with uncertain status or by placing people in vulnerable circumstances in accommodation centres that function as quasi-detention and have been shown to have a terrible impact on health.

The amendments are a positive step that aims to ensure that the physical and mental health needs of people seeking asylum are prioritised and that there is a comprehensive, co-ordinated approach to addressing those needs in line with our obligations under Article 12 of the International Covenant on Economic, Social and Cultural Rights of 1966 to

“recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.

Numerous reports and work by organisations such as the Helen Bamber Foundation, Freedom from Torture, the Royal College of Psychiatrists and the Equality and Human Rights Commission show that people seeking asylum face barriers in accessing services, including health services, throughout the asylum process, from their arrival in the UK to the conclusion of the process and beyond. They are also more likely to have specific healthcare needs caused by distressing experiences in their country of origin and traumatic experience during their journey seeking refuge.

As the noble Baroness, Lady Hollins, explained, there are numerous points in the asylum system where the physical and mental health of people seeking protection affects their ability to engage in the process or is worsened by the system we have in place. One particularly troubling example is the detention system, which the noble Baroness has talked about and is the subject of a later group of amendments—I shall scrub what I was going to say about that, given the lateness of the hour.

I am aware that the Home Office is currently engaging with the NHS, NGOs and other stakeholders through groups like its asylum seeker health steering group and associated subgroups. This is welcome, but much more is needed. The current guidance is inadequate and its implementation patchy. Codes of practice focused on the health and care of people seeking asylum and the responsibilities of all those engaging with them in the asylum system would not only increase the fairness and efficiency of the system but provide better protection and support to those in need of asylum.

I hope that the Minister will look kindly on these amendments, which I think are part of the solution.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise with great pleasure in following the three noble Baronesses who have proposed this amendment.

Outside Yarl’s Wood detention centre, at the “Set Her Free” protest, I listened to some incredibly powerful and moving speeches from women who had been detained in that centre and had then come back to protest. They spoke about what the experience was like and what they had been through. They showed huge bravery. We talk a lot about trauma in your Lordships’ House; you could hear the trauma in those women’s voices.

I see that the noble Baroness the Minister will not be answering this question, and I do not necessarily expect her to remember this, but in June 2020 when I was still a new Member of your Lordships’ House, she was kind enough to have a one-on-one call with me after I went with the South Yorkshire Migration and Asylum Action Group to Urban House in Wakefield, where the conditions were absolutely dreadful. We saw SYMAAG trying to pick up the pieces after the failure of government services to meet the most basic provisions.

That is why I want to make this particular point: much of the provision covered by the noble Baroness’s amendment is currently being filled, patchily and inadequately but desperately bravely and with huge effort, by voluntary groups such as SYMAAG, as well as many others like them around the country. They cannot possibly do an adequate job, but they do an amazing job. The point I want to make to the Minister is that, with adequate government provision, those groups could do so many other positive things to build communities and be an active growth force instead of just trying to plug the Government’s gaps.

There is a real long-term cost. If we look at the financial cost of the lack of provision that this amendment provides for, the long-term cost is far greater than the cost of providing care for desperate people who are in our society and are our responsibility.

--- Later in debate ---

I conclude by again asking, to be absolutely clear, what the purpose of these provisions is. Does an individual have to physically enter the United Kingdom on land and disembark, or are the Government now entitled to prosecute purely for entering UK territorial waters? This would be a significant change, and one that I believe needs to be clarified to the Committee this evening.

[Baroness Lister of Burtersett (Lab)]

My Lords, I strongly support the noble Baroness, Lady Ludford, in what she had to say, but I would like some clarification. She said clearly that the effect of this clause is to criminalise the act of seeking asylum in the UK, which was the conclusion reached by the JCHR, of which she is a member. Does the Minister agree with the conclusion that this is what Clause 39 means? If she does not agree, what does it mean? If she does agree, I have a conundrum that is a variation of what the noble and learned Lord, Lord Etherton, has twice rehearsed now. He made the point that if an asylum seeker is deemed inadmissible, how do they even get to Clause 11 to be affected by the differential?

I have the same conundrum around criminalisation. If the very act of seeking asylum makes someone a criminal, how do they even get to Clause 11? I do not understand how Clause 11, inadmissibility and criminalisation interact with each other. It is rather late to go into this but, if the Minister cannot do it now, a letter to all the members of the Committee would be very helpful to clarify this interaction.

[Baroness Hamwee (LD)]

My Lords, the fact that I am going to say that I could not agree more with my noble friend Lady Ludford and will not add to that should not be taken to reduce the strength of that view.

I added my name to Amendment 122 from the noble Baroness, Lady McIntosh, for the reasons she explained. After I did, I realised that there is a question to be asked about new subsection (E1), which makes it an offence for someone knowingly to arrive in the UK without an ETA, an electronic travel authorisation; I would say that it would be the same to enter, but I am not sure it would be possible to enter the UK without an ETA.

I feel very uncomfortable about new subsection (E1) which makes it an offence to do something under the ETA rules when we do not have those rules. The ETA is not in effect yet. Your Lordships may think it right, when we see what the scheme is, that an offence be created—but not at this stage.

Nationality and Borders Bill

Baroness Lister of Burtersett Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 3rd February 2022 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, we have Amendments 78, 79, 80, 81, 82, 82A, 82B, 86A, 86B, 90 and 90A in this group. I have also put my name to Amendment 95A along with that of the noble Baroness, Lady Lister. I do not know whether she is planning to speak to it—it is the amendment tabled by the noble Baroness, Lady Coussins—but its thrust certainly falls within this group. Noble Lords will be pleased to know I am not going to speak precisely to each amendment.

I am slightly hesitant to raise this point, given the expertise of the noble Lord on the Front Bench and the noble and learned Lord sitting opposite, although it feels as if I have been sitting next to him through most of the passage of this Bill. Listening to the last exchange, is it something to do with the whole of our legal system that we place asylum seeker on one side opposite the state as the other party? The whole way this is designed is to have parties to proceedings fighting one another. I am glad to see the noble Baroness, Lady Chakrabarti, nodding at that. It has only just occurred to me.

This clutch of amendments addresses the period within which the claimant is to provide evidence. I hoped that the noble and learned Lord might be speaking ahead of me because I am sure I would be saying I agree with him. Why is the specific date a matter for the Secretary of State or the immigration officer? Different people will need different periods of time. That might be an argument for variability, but it should not mean that it can be an arbitrary date without there being a reasoned basis. The lawyers in the Chamber will tell me if I get this wrong, but I think one would usually expect to see time periods within tribunal rules with a possibility of applying for an extension, but the procedure rules are the subject of the next clause. I am concerned about whether this is a proper way to go about giving notice. It should be neutral and objectively appropriate, and Clause 17 gives the Secretary of State considerable power.

Under the new subsections introduced by Clause 18, the tribunal is required to make a statement as to whether the claimant has behaved in a way designed or “likely” to go to his credibility. When we tabled Amendments 82A and 82B, I was thinking about points noble Lords made and will make again and again about the impact of trauma on a claimant, and the difficulties someone may have—even someone who is not affected—in dealing with authority figures, accessing documents and so on. This point was very clearly made by the noble Baroness, Lady Neuberger, a couple of days ago. That is why I stress the word “likely”.

This gives me the opportunity to ask the Government why Clause 18 is included. It would be good to have that on the record. Others may have a different take on the reasons for some claims having taken the course they have.

In my Amendment 86A, I am not really seeking to amend the noble and learned Lord’s Amendment 86, just to add to it by requiring adequate time before a cut-off date in a priority removal notice. Amendment 86A would add more of the people about whom we have been concerned to the list; the same point is made on Amendments 90 and 90A.

I also have Amendment 86B in this group. I got into quite a circular argument with myself last weekend about this. I am not sure I resolved it, but I will not trouble the Committee with it this evening, given the time.

[Baroness Lister of Burtersett (Lab)]

My Lords, I support Amendment 95 in the name of the noble Baroness, Lady Coussins, who apologises for having had to leave early. This speech will be in two halves—although one will be rather bigger than the other. The first half is roughly what the noble Baroness would have said.

At Second Reading she spoke about the ways in which she believes this Bill places additional unacceptable barriers in the way of women refugees seeking asylum who are fleeing sexual violence and exploitation. The amendment seeks to remove one of those obstacles and to extend the benefit to other groups of asylum seekers who may be similarly disadvantaged, so that it is accepted that they have a good reason for a late claim.

As we understand it, the issue is that in the proposed legislation the authorities deciding an asylum claim or appeal are instructed to attach, as we have heard, only minimal weight to any evidence provided late by the applicant, unless there is a good reason for it being late. However, there is robust evidence to show that the trauma suffered by the victims of sexual violence or trafficking can impact on memory and the ability to recall information. The Home Office guidance itself makes this clear. The other categories she included in Amendment 95, such as victims of torture, modern slavery and trafficking, are just as likely to suffer the same effects on memory and should be protected in the same way. I strongly support what she would have said.

However, as the arguments from this perspective are very similar to those I made in support of Amendment 40 on Tuesday, I will focus on children, a group we have not talked much about so far, although I was very pleased that my noble friend Lord Coaker did so in introducing this group. It is the strong view of children’s organisations such as the Children’s Society—I am grateful for its help—that the Bill completely fails to protect children, a group in particular need of it. Despite recognition of this added need for protection, this Bill’s harsh reforms apply to children just as they do to adults, unless the Minister can tell me that I am wrong—I hope he can. This is not right; it is a serious failure of the Government’s duty to protect children.

We need only look at Clauses 25 and 17 to see the disproportionate impact many of these provisions will have on children and young people. Amendment 95 seeks to ensure that children are recognised as having a good reason for not providing evidence by the deadline and that any evidence they provide late is given due weight. We know from organisations on the ground that asylum-seeking children who have been forced to flee, who may have witnessed violence and the destruction of their homes or schools, or even death, and who may have endured traumatic journeys, might not be able to share all the details of their ordeal in the first instance to provide evidence to support their case. The particular difficulties children might face in providing prompt evidence are recognised by the JCHR.

The Government know this. Their only quality impact assessment, to which my noble friend referred, sets out how these clauses will have a disproportionate impact on vulnerable persons, including children. The Home Office’s Children’s Asylum Claims Casework Guidance makes it clear:

“Decision makers must take account of what it is reasonable to expect a child to know”—


or relay—

“in their given set of circumstances”.

It is inappropriate for authorities to question the credibility of a child’s claim if they omit information, bearing in mind the child’s age, maturity and other reasons that may have led to those omissions. Requiring time-limited evidence and penalising children when they are unable to meet the deadlines goes against the Government’s own assessments and guidance and does nothing to protect children or, as we have heard, their best interests.

As one young person supported by the Children’s Society, which has long supported asylum-seeking children and young people, reminds us:

“This is not a joyful moment in our lives. We have to talk through the worst parts of our past. It is very traumatic.”


Children and young people need time and a sense of safety before they can begin to disclose their experience. They also need good, child-appropriate legal representation, which we know they often do not get, unfortunately. All too often, asylum-seeking children receive poor initial legal advice, which can lead to ill-prepared claims and to them not feeling comfortable about setting out their information. Due to legal aid funding cuts, quality legal advice is not readily available.

Another young asylum seeker supported by the Children’s Society described his experience:

“My solicitor did nothing, it was horrible. They didn’t even prepare a witness statement for my interview. I had to do everything myself. I had my social worker but she didn’t know how to help me with my asylum case. The interviewer told me she had no information and I had to tell her everything.”


The Children’s Society sees many asylum-seeking children who have to provide evidence at later stages of their claim, not because of any weakness in the claim but because of the trauma they have endured or the consequences of non-existent or poor legal representation. No doubt the Minister will assure us that these concerns will be addressed in guidance and on a case-by-case basis, yet, as was highlighted in the recent report, An Inspection of Asylum Casework, guidance is often neither followed nor implemented by Home Office caseworkers. Home Office staff themselves stressed that they

“did not have time to consider each case on its own merits, contrary to the guidance they receive.”

So the aim of Amendment 95 is not to tie the hands of decision-makers or legislate for every situation in which a person might provide late evidence. Rather, it is to ensure that the most vulnerable are protected in the Bill, because we cannot leave their safety and well-being to chance. That is consistent with this highlighted observation from the JCHR:

“It is crucial that decision-makers recognise the many legitimate reasons why asylum seekers may struggle to provide evidence in support of their claims within tight deadlines.”


If Clause 25 stands part—I have to say that I will support the proposal that will be put by my noble friend Lady Chakrabarti that it should not—this amendment represents the minimum necessary to protect children, women, women fleeing gender-based violence and others in the most vulnerable circumstances.

I want to return briefly to what the noble Baroness, Lady Coussins, said. Given the Home Office guidance, we cannot see any logical or humane reason why the Government would not accept this amendment and establish on the face of the Bill that, in these circumstances, for these victims, any late evidence should always be accepted as being late for a good reason, and their application or appeal should not in any way be disadvantaged because of it.

[Lord Green of Deddington (CB)]

My Lords, I will speak briefly to Amendment 85 on the destruction of documents. I am a sponsor of this amendment, together with the noble Baroness, Lady Neville-Rolfe, who is unfortunately unwell and in isolation.

The purpose of these subsections is to indicate matters that might damage a claimant’s credibility in respect of an asylum or human rights claim. The destruction of documents is clearly one of these. Why else would this be done, except to make it much more difficult to identify the claimant and therefore much more difficult to assess their claims? Noble Lords will remember that claimants arriving by air used to cut up their passports and dispose of them in the aircraft’s toilet. That was dealt with by photocopying their documents before they boarded the aircraft. This time round, it is rather more difficult to counter, but it should certainly be regarded as relevant to an assessment of the validity of their claim.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I think I was asked a similar question, in a different context, on the police Bill. I will give the same answer, not least because I am conscious that a lot of these provisions are actually Home Office provisions. I can assure the noble and learned Lord that I will write to him with the answer to that question, so that when this matter comes back he will be in possession of the answer—rather than make an educated guess, which might turn out to be slightly inaccurate, from the Dispatch Box. I hope that is sufficient.

[Baroness Lister of Burtersett (Lab)]

My Lords, on that very important point, perhaps the Minister will take back to the Home Office that this Committee would very much like the guidance to be published in draft form in good time so that Members of the House and others can look at it.

[Lord Paddick (LD)]

I am sorry for interrupting, but I am becoming a little confused again, I am afraid, probably because we have been at this for a very long time and it is very late and so forth. Is the Minister saying that the deadline that is set for the submission of evidence will be set on a case-by-case basis, for example, if the applicant is particularly vulnerable? If vulnerabilities come to notice that were not initially brought to the notice of the decision-maker, will the deadline then be adjusted and perhaps extended as a consequence of that? Although there might be general guidance about what the deadline might be in every case, is it movable and adjustable in every case and might it be adjusted further as the case progresses? In which case, why on earth is this part of the Bill?

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

There are a number of ways of skinning this particular cat because there are separate amendments but common themes. If when I am about to sit down, I have not dealt with it fully, I am sure the noble Baroness will intervene, but I will try to come to Clause 25 head on.

However, I was going to go next to Amendments 82A and 82B, both in the name of the noble Baroness, Lady Hamwee. Different elements of Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 have different thresholds in how they are applied to the facts of a case and how credibility is consequently damaged. Clause 18 is drafted to take this into account, so that decision-makers will take into account the relevant thresholds on a case-by-case basis. Clause 18 will encourage claimants to engage with the process in good faith and, along with the measures relating to late evidence in Clauses 17 and 25, to provide evidence in support of their claim at the earliest opportunity. As I said earlier, we think that by encouraging people to bring all their evidence upfront in protection or human rights claims, we can protect those who need protection and identify any unmeritorious claims as early as possible.

Turning to Amendment 82B, the good faith requirement is intended, as I think is obvious, to address behaviours that a deciding authority thinks are not in good faith. Where an individual who makes a protection or human rights claim exhibits a pattern of non-compliant behaviour during their dealings with immigration authorities, their credibility should be damaged to reflect that behaviour. It is also designed to stop claimants deliberately obstructing the one-stop and expedited judicial process—for example, by not taking up our enhanced legal aid offer and then making a last-minute claim based on lack of access to legal advice. The good faith requirement therefore goes further than the behaviours currently described in Section 8 of the 2004 Act. It puts beyond doubt that past behaviour that is deliberately designed to frustrate or delay proceedings should be damaging to the claimant’s credibility. We think that is right, for the reasons I have outlined.

I turn to Amendments 83 and 88, which would remove the credibility provisions in Clauses 18 and 21. For the reasons that I set out earlier, we think that it is entirely reasonable to require evidence in support of a protection of human rights claim, or a claim of being a victim of modern slavery, to be provided in a timely manner, unless there are good reasons why that is not possible.

However, I underline that a person’s credibility is not necessarily determinative of their claim under the current rules and procedures, and the Bill does not change that. Decision-makers will still be required to consider credibility in the round, as they currently do, and, where a person has raised evidence late, which causes delay and wasted resource, it is right that decision-makers consider whether there is any merit in the reasons for that lateness.

I turn now to Amendment 90A, again in the name of the noble Baroness, Lady Hamwee. We recognise that, due to an person’s individual circumstances, it may be harder for them to provide material in a timely manner. Since this is essentially an amendment to Amendment 90 in the name of the noble and learned Lord, Lord Etherton, I respectfully direct the noble Baroness to the response that I gave to the noble and learned Lord.

As I am on the noble and learned Lord’s amendments, I will now deal with Amendment 91 on reasonable grounds. It is right that, where an individual has been assessed as a priority for removal or deportation, they should avail themselves of the associated legal aid advice offer and provide any matters listed within Clause 19(3)(a) before the cut-off date and they should provide reasons for lateness where a late claim is raised, under subsection (7).

Decision-makers cannot reasonably be expected to speculate on or investigate why an individual who has received a removal notice and associated legal aid advice offer would raise a late protection or human rights claim. If no reasons for lateness are provided, or if the reasons provided are not considered to be good reasons, it would be clear to the decision-maker that any appeal must be subject to the expedited appeals process. In answer to the noble and learned Lord, I say that the good reasons test is adequate and sufficient.

The clause already provides significant safeguards for recipients of a PRN in the form of the legal aid advice provision and the good reasons test for individuals who raise late claims. I set out earlier what those good reasons can amount to. It is a very open-ended test. Therefore, I respectfully suggest to the noble and learned Lord that the amendment is unnecessary and, indeed, would risk complicating an otherwise straightforward and, I suggest, suitable test.

I turn now to Amendment 95 in the name of the noble Baroness, Lady Coussins, but spoken to by the noble Baroness, Lady Lister. By introducing a statutory requirement to provide evidence before a specified date, the Bill redresses the current balance. It is right that decision-makers should have regard to the principle —I underline “principle”—that minimal weight is given to evidence that is late, following receipt of either an evidence notice or a priority removal notice, without good reason.

I will come to the thrust of Clause 25 in a second, but I will first say that this amendment would place an obligation on decision-makers, not only in the Home Office but also the judiciary, to accept that there were good reasons for late evidence in all asylum and human rights cases where either the claimant or the claim type fell into one of the listed categories. That would remove the requirement that decision-makers should have regard to the principle that minimal weight should be given to the evidence. That would be the case even if the reason for lateness was wholly unconnected to the category of claim or the personal factors. No causal link between the two is set out in the amendment. I respectfully suggest that that is overly prescriptive and would tie the hands of the decision-maker. Of course, in all cases, the decision-maker can take these matters into account—

[Baroness Lister of Burtersett (Lab)]

It is not my amendment so maybe it could be worded better. The noble Lord gave great emphasis to the case-by-case basis earlier, which sounds very reasonable, and he talked about subjective factors. Has he read the recent research from the British Red Cross about women seeking asylum? It found that frequently their claims are met with disbelief and they are not treated very well at all. There is a lack of recognition of gender-based violence that they may be fleeing from, as the noble and learned Lord, Lord Etherton, talked about earlier. I suggest that the noble Lord and those responsible for this clause look at this research, because I worry about putting so much emphasis on subjective factors and the case-by-case basis.

[Lord Wolfson of Tredegar (Con)]

I think I have received the email from the Red Cross, as I think it emailed everyone. I have set up a folder for all these briefings, so I do not want to say that I have read it, but if I have been sent it I certainly have it and will read it. However, due to pressures of other business, I cannot say that I have read all the material yet.

[Baroness Lister of Burtersett (Lab)]

I absolutely understand—I do not think it was in its general briefing, but it produced a separate report last week or the week before, and it is worth looking at.

[Lord Wolfson of Tredegar (Con)]

In that case, I will certainly read it over the weekend. I know that those in the Home Office responsible for this area are obviously looking at the debate and will have picked up what the noble Baroness has said.

I was just dealing with Amendment 95, after which I will come to Clause 25 itself. I lost count of how many times the noble Baroness, Lady Chakrabarti, used the word “tawdry”. It really is not, if I may say so. We obviously disagree, and I will make no comparisons either to parking fines or international commercial litigation. At one point it seemed to me that the noble Baroness was saying that, on the one hand, this clause was terrible and, on the other, that this is what tribunals do in any event and we can trust them to do the right thing.

Police, Crime, Sentencing and Courts Bill

Baroness Lister of Burtersett Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Wednesday 15th December 2021 Lords Chamber

The formulation of revised Amendment 82 meets all the policy objectives and at the same time provides a temporary bridge to enable real-life work to begin on testing the best way to tackle this problem in the future. I hope my noble and learned friend will recognise the efforts we have made to address and answer the points that he and his colleague, the noble Lord, Lord Wolfson, made. I do not for a moment suggest that the current drafting of the amendment is suitable so I hope my noble and learned friend will commit to taking it away and bringing back a redrafted version at Third Reading that meets the points we have all been making. I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I speak in support of Amendment 82, to which I was very pleased to add my name. I applaud the noble Lord, Lord Hodgson of Astley Abbotts, for his tenacity on the issue of Friday releases. I am also grateful to the Minister for meeting us last week and for his helpful letters on universal credit—which I am pleased to see is also addressed in the recent prisons strategy White Paper—and on how the power to avoid some Friday releases has worked in Scotland.

However, as I said to the Minister at our meeting, the latter tells us about the “what” of the small number of releases made under this power but nothing about the “why”. While I quite understand why the Scottish Prison Service could not, as the letter said, comment on the facts of individual cases, I would have thought it could have pulled out some patterns to help our understanding. Such an analysis would surely be of value to the Home Office, so I hope it will pursue the matter further. The fact that the Scottish Government are currently consulting on the possibility of ending Friday releases suggests they are not happy with the current—I would say—overbureaucratic procedures.

It is very encouraging that, as we have heard, the prisons strategy White Paper shows that the Home Office has been listening to concerns raised about Friday releases. I quite understand why the Minister does not want to pre-empt the outcome of the consultation, as he explained when we met. Hence, as the noble Lord, Lord Hodgson, noted, the amendment has been carefully drafted so as not to do so. Indeed, the adoption of pilots as envisaged would provide useful evidence to guide the Government when they are ready to legislate on the matter. Like that of the noble Lord, Lord Hodgson, my understanding is that it probably will require legislation.

The pilots could be established at the end of the consultation period so that they could take on board views expressed during that consultation. However, we have no idea when legislation will be possible because—even if everything goes smoothly and even with the best will in world—another legislative opportunity might not come along for quite a long while, as has already been suggested, in the wake of what is an extremely large Home Office Bill. It surely makes sense for the Government to support this amendment, which, by enabling the adoption of pilot schemes in the short term, contributes to longer-term, evidence-based policy-making. It could make the world of difference to a number of prison leavers and their reintegration into society.

I hope therefore that the Minister will accept it or at least the principle of it and, as has been suggested, come back at Third Reading with the Government’s own amendment. If he does not, I fear it will send out a message to those working on the ground that, despite the consultation, the Government are not in fact really interested in evidence and how best to address speedily the problems, which they now acknowledge exist, created by Friday releases.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, when I was a child and my parents stopped me doing something I would say “That’s not fair” and they would say “Well, life isn’t fair.” I would argue that this House is where we can make life fairer and obviously Friday releases are not fair. I congratulate the noble Lord, Lord Hodgson of Astley Abbotts, on persisting because this is an injustice, and it is a relatively small fix—I would hope.

I understand the point about consultation, but we all know that it is not fair. This amendment is a simple practical solution to the problem. The noble Lord, Lord Hodgson, said “What’s not to like?” There is something not to like: it gives Ministers discretion, whereas I think that they must implement these schemes, so I am less giving than the amendment.

If you want to be tough on crime and want that to be your legacy, you have to break the endless reoffending cycle and give people the best opportunity you possibly can to reintegrate with society. Friday releases are the polar opposite of that. They make life much harder for released prisoners before they have even got on their feet. It is obvious that this has to change.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, this amendment seeks to reduce releases on a Friday, or on days before bank holidays, including releases of persons whose release falls on a non-working day, by creating a power for the Minister to establish a pilot scheme via secondary legislation that would grant prison governors the discretion to release earlier in the week, where that would be helpful for the prisoner’s reintegration into society.

I thank all noble Lords who have participated, particularly my noble friend Lord Hodgson of Astley Abbotts and the noble Baroness, Lady Lister, for their constructive and entirely commendable approach to this. As my noble friend put it, rather than simply rehearsing the arguments made at an earlier stage, they have gone away, considered the matter and sought to refine them in answer to the points made by my noble friend Lord Wolfson of Tredegar.

The question posed ultimately by the noble Lord, Lord German, rehearsing the one posed by my noble friend, was: what is not to like? Regrettably, I cannot answer that with “Nothing”, which I suspect was the answer being fished for. I will endeavour to explain why.

The noble Baroness, Lady Lister, highlighted the existence of a discretionary scheme in Scotland, in terms of the Prisoners (Control of Release) (Scotland) Act 2015. We have engaged with the Scottish Government and looked at research carried out by the Scottish Prison Service, and we have seen that the uptake of this discretionary scheme since 2015 is extremely low: only 20 prisoners in that period have been granted early release. I submit that that gives us some indication of the complexities attendant upon the point. It is not as though we have in the neighbouring jurisdiction a solution to this matter which could be taken from the shelf and applied in England and Wales. We plan further engagement with the Scottish Government to look at the matter in more detail, and we will share the results of that engagement with the noble Baroness.

[Baroness Lister of Burtersett (Lab)]

I am sorry to interrupt, but the Minister seems to be using this as an argument for not accepting the amendment. I have two points. First, there is no reason why the pilot should follow the example of the Scottish procedures, which, to me, seemed very bureaucratic when I read the helpful letter sent by the noble Lord, Lord Wolfson. Surely the whole point of pilots is to think about other ways of doing something before the Government actually legislate.

Secondly, yes, a very small number has been helped. We do not know why that is. Certainly, the letter I was sent tells us the what but not the why. But even a small number being helped is better than no one being helped in the period until such legislation can be passed.

[Earl Attlee (Con)]

My Lords, if the Scottish experience shows that it is no good, why on earth was it put in the White Paper?

--- Later in debate ---

[Baroness Lister of Burtersett (Lab)]

Is the noble and learned Lord in effect saying it will be at least two years until there can be legislation, because this only runs for two years?

[Lord Stewart of Dirleton (Con)]

More than once, even today, this House has emphasised the importance of moving forward on the basis of evidence. The Government’s view is that it is appropriate to complete the consultation proceedings, interrogate them and decide how best to move forward.

[Baroness Lister of Burtersett (Lab)]

My suggestion was to wait until the end of the consultation, which we are told will be next April, review the evidence, which surely should not take that long, and then run the pilot on the basis of what is found out in the consultation.

[Baroness Jones of Moulsecoomb (GP)]

When this Government want to bring in some quite nasty legislation, they can move very fast. I do not see why they could not bring in some rather nice legislation very fast as well.