Immigration Detention: Brook House Inquiry

Debate between Baroness Lister of Burtersett and Lord Kerr of Kinlochard

Thursday 11th January 2024 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords—

[Baroness Lister of Burtersett (Lab)]

My Lords—

Illegal Migration Bill

Debate between Baroness Lister of Burtersett and Lord Kerr of Kinlochard

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

The noble and learned Baroness makes a very strong case and I give her my full support.

My name is on Amendments 80 and 91 in this group. Amendment 91 is concerned with victims of human trafficking, but both fall at the hurdle of retrospection, as has been explained by the other signatories, in particular, my noble friend Lord Carlile, and by the noble Baronesses, Lady Chakrabarti and Lady Hamwee. I have the luxury of being able to add virtually nothing to the arguments already made.

I think the best description of the case against retrospection is in my noble and learned friend Lord Hope’s explanation of Amendment 39, which

“seeks to give effect to the principle that, unless for good reason, legislation should operate prospectively and not retrospectively”.

What is the conceivable good reason? What are the very exceptional circumstances that the Constitution Committee suggested might excuse retrospection?

The noble Baroness, Lady Hamwee, suggested that the Minister might try to say that stopping the boats is so exceptional as to justify retrospection. But there are a lot of other ways of dealing with that; for example, the safe passage visa argued for at Amendment 130. The Minister might say that that it is the cost of housing those who have come across the channel or in the back of a lorry and have been apprehended. But the costs of detaining and deporting those declared inadmissible under this Bill will be much higher.

That is the point the Refugee Council made in its impact assessment and estimate of the costs. It estimated a cost of £9 billion over the first three years. The Minister says that he does not recognise those numbers. That is not a sufficient argument. He needs to tell us what is wrong with those numbers and what his numbers are. It is not good enough just to sit there and say, “Well, I’m not going to engage in this debate because I don’t recognise the numbers”. I think retrospection is fundamentally unacceptable.

A few years ago, when I was driving up Headington Hill in Oxford, I forgot that, eccentrically, the set speed limit there is 20 miles per hour. I was required to present myself in Milton Keynes four months later for a speed awareness course, because I had been travelling at 27 miles per hour. Eccentrically, because I am a very eccentric person, I failed to ask my wife to see whether I could have a personal course. Nevertheless, I would have been very taken aback if, when I got to Milton Keynes—it was extremely hard to find the place and I was driving rather fast trying to find it—I had been told on arrival, “Actually, we have changed the penalty and we are going to export you to Rwanda”. I would have objected, and I object to retrospection.

[Baroness Lister of Burtersett (Lab)]

My Lords, I agree with everything that has been said so far, but I will focus on the opposition to Clause 2 standing part of the Bill. This clause is, in many ways, the nub of the asylum ban to which the Bill gives effect. To place a duty on the Home Secretary to remove virtually all those who seek asylum through irregular routes is an unprecedented step going far beyond simply giving her the power to do so. Here we are talking about those arriving not only by boats but by any irregular route; the boats are used as a justification for the Bill, because the Government know that we all want to see an end to those very unsafe journeys. The fact that it is a power only when it comes to children is a small mercy, given that they will be removed when they reach the age of 18. However, I will leave the treatment of children to a later debate, because there is still a lot to be said about the impact on children.

Calling those affected “illegal migrants” does not alter the fact that the majority are exercising their right in international law to seek asylum. That goes back to the point that the right reverend Prelate the Bishop of Chelmsford made earlier. In the words of the UN rapporteurs that I quoted earlier,

“the act of seeking asylum is always legal, and effective access to territory is an essential precondition for exercising the right to seek asylum”.

When she first introduced the Bill, the Home Secretary accused critics of naivety in suggesting that

“everybody coming here on a boat is a genuine asylum seeker fleeing for humanitarian reasons. The reality is that many of these people are economic migrants who are abusing our asylum system, and that is what this Bill aims to stop”.—[Official Report, Commons, 7/3/23; col. 174.]

Could the Minister give us the evidence on which that assertion is based? It has been reported that the Home Office does not have that evidence, but, if it does, now is the opportunity to provide it.

No one is suggesting that everyone who comes here on a small boat has a genuine case for asylum, but we know that the majority are likely to have such a case. According to the Refugee Council’s analysis of official data, six out of 10 of those who crossed the channel in small boats last year stood to be recognised as refugees—yet they will no longer be able to make their case.

The Home Secretary has argued that the Bill’s critics

“ignore the fact that our policy does in fact guarantee humanitarian protection for those who genuinely need it”.—[Official Report, Commons, 13/3/23; col. 576.]

However, many of those whom she has given herself a duty to remove will genuinely need humanitarian protection. Yet there will be no mechanism for ascertaining whether that is the case before they are simply removed to be dealt with elsewhere, like a parcel marked “don’t return to sender”. To quote the UN rapporteurs again,

“any steps taken to legalize policies effectively resulting in the removal of migrants without an individualized assessment in line with human rights obligations and due process are squarely incompatible with the prohibition of collective expulsions and the principle of non-refoulement”.

The Government talk as if we take a disproportionate number of asylum seekers, yet the opposite is the case— that point was made earlier today, though it seems a long time ago now. As I asked earlier, what happens if other countries follow our lead and also put up the “no asylum seekers here” sign? The chances are that the numbers seeking asylum in the UK will go up, not down.

In practice, the general view, including that of the Law Society, is that removal of those deemed inadmissible will be very difficult in the absence of adequate third-country agreements, making the Bill, in effect, unworkable. The fear of the Refugee Council, the UNHRC and others is that it will mean many thousands left in semi-permanent limbo, at risk of destitution. As I said at Second Reading, the mental health implications are likely to be serious, as spelled out by the Royal College of Psychiatrists, which has many concerns about the Bill’s impact on mental health. For those who are removed to a third country, there is no guarantee that the country will be equipped to assess their asylum claim, so again they could be living in limbo, but out of sight and out of mind of the UK Government. How can all this be described as compassionate and humane, as Ministers repeatedly do?

European Union (Withdrawal) Bill

Debate between Baroness Lister of Burtersett and Lord Kerr of Kinlochard

Wednesday 14th March 2018 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I cannot claim the knowledge of Northern Ireland of many other noble Lords who have spoken. However, I wanted to contribute to this debate and have added my name to Amendment 218 because 25 years ago I was privileged to be a member of the Opsahl commission, an independent commission or citizens’ inquiry into the future of Northern Ireland. I have also been very much influenced by the Northern Ireland Women’s Coalition; it practises what I called in my academic work the politics of solidarity in difference, and had an influence on the wording of the Good Friday agreement which I do not think is always sufficiently recognised.

Earlier in Committee, I repeated a question that I asked at Second Reading: how is the requirement in the Good Friday agreement for an equivalent level of human rights protection in Northern Ireland and the Republic to be maintained if the citizens of the former could no longer look to the European Charter of Fundamental Rights? I noted that in his helpful letter to Peers, the noble Lord, Lord Callanan, pointed out that the agreement preceded the charter and, as the charter is not referenced in the agreement, the Bill should not affect our obligations to it. However, the point is about equivalence. If the charter now applies in the Republic and not in Northern Ireland, with the loss of various rights in the latter, how, I asked again, will that equivalence be maintained? But answer came there none, so I would very much appreciate it if the Minister could give an answer to that today, especially as, since then, I have read of the concerns of the Northern Ireland Human Rights Commission on this score, and that of a number of human rights organisations and academics in a recent letter to the Irish Times. That letter argued that we need greater clarity on how the restated commitment in the European Commission’s draft protocol to no diminution of rights in Northern Ireland will be achieved in the absence of the charter. Can the Minister explain that?

By the same token, while the,

“total, steadfast commitment to the Belfast agreement”—[Official Report, 12/3/18; col. 1414.]

given by the noble Lord, Lord Bourne of Aberystwyth, on Monday, was very welcome, it is difficult to see how that agreement will not be undermined if the charter is removed and nothing is put in its place. As a briefing by the Northern Ireland Human Rights Commission underlines, equality and rights provisions are central to the agreement. It is no wonder that people in Northern Ireland are not worried about its future. A number of organisations, including the Northern Ireland Human Rights Commission, are now arguing, in the light of these risks to the human rights framework, that this is a key moment to renew discussions on a Bill of Rights for Northern Ireland. Will the Minister undertake to consider that?

Like my noble friend Lord Browne of Ladyton, I am particularly concerned about the implications of withdrawal for children and young people in Northern Ireland, which I mentioned briefly when we debated the protection of children and their rights at an earlier stage in Committee. The Children’s Law Centre in Belfast—this links in with what the noble Baroness, Lady Suttie, said—consulted children and young people and found that they were angry and frustrated that they had no influence on a decision which has particular implications for them in terms of their childhood and their future. The report of the conference to which my noble friend referred, which was organised by children and young people themselves, details their concerns. Has the Minister read that report? If not, will he undertake to do so?

Some of us attended a recent meeting with some of the children and young people held in your Lordships’ House. Talking to them really brought home to me what a hard border means in terms of everyday life. It is about not just goods and lorries but about how everyday lives are lived across the border. For example, what happens when separated parents live either side of the border? What happens when your school is the other side of the border? When this question was put at the conference to the Secretary-General of the Department of Children and Youth Affairs, he responded, “I can confidently say I don’t know, one of many areas that we don’t know yet and have to work out”. That was not very reassuring. What happens if you need specialist health treatment on the other side of the border, or if the nearest emergency health treatment is the other side? These are the kinds of concerns the young people raised with us and they point to a real threat to their social right of access to services and to their right to family life.

The Government have not yet managed to convince anyone that they have a realistic answer to the problem of the border between Northern Ireland outside the EU and the Republic inside it. Talking to these children brought home to me the damage this could inflict on their rights and well-being. This amendment would address some of those concerns. What reassurances can the Minister give to these children, because they are listening?

[Lord Kerr of Kinlochard (CB)]

I support the amendment of the noble Lord, Lord Hain, and that of the noble Lord, Lord Browne, to which I have added my name. I do not need to say very much in support of the amendment of the noble Lord, Lord Hain, because he introduced it so clearly and fully, except to say that I agree with the noble Baroness, Lady Doocey: I cannot see any reason why the Government cannot accept the amendment of the noble Lord, Lord Hain, tonight. It seems to me that it sets out very clearly the commitments made by the UK Government, which we all agree are very important. In its second paragraph, it provides for the possibility that there might be something in the magic solutions to the border. If there were, that would be taken into account in the wording of the amendment of the noble Lord, Lord Hain. I therefore hope that the Government will accept it.

Turning to the amendment of the noble Lord, Lord Browne, my only point is that the extraordinary linguistic fudge in December is very hard for the lawyers to construe. It has been construed by the Commission lawyers in the 118-page draft withdrawal treaty, which was published on 28 February. It has been construed as requiring “a common regulatory area” in Northern Ireland and including Northern Ireland in the EU’s customs territory. Many in London have denounced these solutions; many in London and some in Northern Ireland find them unacceptable. However, they have at least tried; they have produced a draft treaty with draft clauses explaining how they think that fudge could be construed and turned into treaty language. We have not done so: all we have done is make another speech, including the same two suggestions that were made last summer, one of which the Secretary of State for Exiting the EU immediately dismissed the day after as blue-skies thinking. We still seem to be at the stage of blue-skies thinking, but next week in the European Council, we will be confronted by a draft treaty that provides a solution acceptable to some in this country but not acceptable, perhaps, to all in this country. It is half way there. I really worry that if we stick to speeches and do not produce drafts, it is very hard to see how this negotiation will reach a conclusion.

I very much support the amendment of the noble Lord, Lord Browne, and it is in the spirit of that amendment that the Government should be thinking very hard of producing the legal language that they want, and then a real negotiation could start in Brussels. Personally, I do not think that it is possible to find the legal language that matches the Mansion House speech. I believe that the only solution that is likely to be acceptable to all parties in Ireland and in this country is continuing membership of a customs union for the United Kingdom as a whole, which is, of course, what the CBI, the TUC and manufacturing industry want, and we all want for other reasons as well. We do not all want it, but on my side, we do all want it. I think that that is where it will end up. But if the Government think there is another way to go, they really need to produce the language and put it on the table in Brussels quickly.