Baroness Ludford debates involving the Ministry of Justice during the 2019 Parliament

Nationality and Borders Bill

Baroness Ludford Excerpts
Tuesday 8th February 2022

(4 months, 3 weeks ago)

Lords Chamber
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Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I was going to come to the point made by the noble Lord, Lord Rosser. Let me just say a sentence about it now: the UNHCR is not the interpretive body of the refugee convention. Each state under the convention is there to interpret its obligations, in accordance with the Vienna convention. That is the system which the state parties have set up. When we have a phrase—we will get to one a little later—such as “serious non-political crime”, the state parties have to interpret it. We will get to an example in the next group—this is a little cliffhanger—of where different countries have approached the question differently. There is nothing wrong with that, provided that they are all acting in accordance with the Vienna convention in good faith in seeking to interpret their obligations.

Respectfully, I think that the noble Lord, Lord Anderson of Ipswich, essentially accepted that basic proposition under the Vienna convention, and he was obviously right to do so. He sought characteristically carefully—if I might say so—to seek disclosure of the legal advice on which the Government are relying, while recognising the conventions which apply to that. I listened carefully to what he said. I will read Hansard to see whether there is anything more I can say in writing to him; I do not want to rush from the Dispatch Box. There may or may not be anything more I can say, but I will read that point carefully. I think he recognised that there are conventions in this area which do apply.

However, I say to the noble Lord, Lord Paddick, that it is not a question of having to agree with all the other signatories. This is not about amending the refugee convention; it is about interpreting it. That is a very different thing. If you want to amend a contract, you need the other party’s agreement, but interpreting a convention is for each state party.

I will say a few words about the substantive clauses, although I think it is fair to say that those were not really the Committee’s focus. Clause 29 sets out how key terms which are defined in the following clauses will be applied; they are the key components of the refugee convention. Clause 29 also revokes the Refugee or Person in Need of International Protection (Qualification) Regulations 2006. Those are the regulations through which we transposed our obligations under the EU qualification directive 2004. Because we are out of the EU, we need to do that in a different way.

However, we will continue to grant humanitarian protection to eligible individuals who cannot be removed from the UK to their country of origin if their removal would breach the UK’s obligations under Articles 2 or 3 of the ECHR. It is important to clarify—I am sure Members of the Committee know this—that these are not individuals protected under the refugee convention. However, we will make further changes to align the entitlements of permission to stay granted on the basis of humanitarian protection to that provided to group 2 refugees.

In response to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, we believe that Clause 33 provides a system of effective protection from persecution. Clause 34 deals with relocation, but I do not think any noble Lords spoke to it directly, so I will just refer to it and move on.

On Clause 35, of course we have a proud history of providing protection to those who need it, but that should not apply to those who commit serious crimes, putting the communities that host them at risk and endangering national security. We believe we are right to define and legislate in this area. I say to the noble Baroness, Lady Hamwee, that that is a good example of serious non-political crime. That is a phrase in the refugee convention, but it is not further defined in it. Each state has to look at it and define it, in accordance—always—with the Vienna convention.

Baroness Ludford Portrait Baroness Ludford (LD)
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The Minister keeps saying that each state will define the refugee convention, and he alluded to the EU qualification directive; there is also the procedures directive. I declare an interest, as I worked on both directives as an MEP. Of course, that was an attempt not for each state in the EU to do its own thing but to have a collective set of laws which interpreted the refugee convention in detail and, as far as I know, complied with it. That prevented each country doing its own thing in a potentially destructive way.

Baroness Hamwee Portrait Baroness Hamwee (LD)
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I have an associated point, to save the Minister bobbing up and down too much. I entirely take the point about non-political crime. I just wanted to make it clear that I was referring only to that bit of the Bill when I mentioned the case. I was not suggesting that it was the prompt for the whole of this part. But can the Minister explain more about the impact of our leaving the EU? Does that give us a legal opportunity, or is this happening because it is a convenient political point in the calendar, as it were?

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Baroness Lister of Burtersett Portrait Baroness Lister of Burtersett (Lab)
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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 Portrait Baroness Ludford (LD)
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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.

Lord Brown of Eaton-under-Heywood Portrait Lord Brown of Eaton-under-Heywood (CB)
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My Lords, I confine my brief comments on this group to Clauses 31 and 32, both of which have been touched on, respectively, by the noble Baronesses, Lady Ludford and Lady Lister.

Clause 31 is peculiarly objectionable. As has been described, it divides up what should be a single, holistic question into a series of sub-questions and compounds that error by the differentiation in some important respects of standards of proof. It imposes an objectionable higher standard of proof on one critical provision. As the Joint Committee on Human Rights says in its report HL Paper 143—pages 39 to 41—it raises the standard of proof from a “reasonable likelihood” to a “balance of probabilities”.

The overall holistic approach to Article 31 was established as long ago as 1995 in a case called Ravichandran, which reported in 1996 in immigration appeal report 77. I confess that I wrote the lead judgment, but it has been consistently applied by the higher courts ever since. To quote one passage, the approach to Article 1A of the convention should be

“a single composite question … looked at in the round and all the relevant circumstances brought into account”

to see if there is a real risk.

Those promoting this clause should read a devastating critique of Clause 31 last month by Hugo Storey, the immediate past president of the International Association of Refugee and Migration Judges who has just retired from being an Upper Tribunal judge. He has no doubt that it will lead to “prodigious litigation”; in six compelling pages that those responsible for the Bill must read, he explains precisely why.

Clause 32, on the question of the particular social group, has been dealt with. It seeks to overturn Lord Bingham’s judgment in the case of Fornah, in the Appellate Committee of this House back in 2006, which was all about a 15 year-old girl trying to avoid female genital mutilation in Sierra Leone. I was a junior member of that court, and this clause tries, contrary to that clear judgment, to introduce a conjunctive approach to the two relevant criteria. It would be a grave mistake and cause grave injustice.

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Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, I am not sure whether it is the time of the evening that prompted that reference to dinner; otherwise, it is not immediately apparent to me what the relevance of it was. I will come back to that rather less substantive point—if I may say so, respectfully—at the end.

Let me deal first with Clause 31. I am grateful to the noble Lord, Lord Dubs. He is right that there are points of principle that underlie these amendments; they underlay the last group as well. I too will try not to repeat the points that I have made. There are points of principle that are at issue between us, and we have set out our respective positions. We believe that the test set out in Clause 31 is compliant with our international obligations. More specifically, we believe that it will provide, and lead to, better decision-making, because it sets out a clear test, with steps for decision-makers, including the courts, to follow. That will lead to greater consistency.

Turning to Amendments 103 and 104, although I listened very carefully to the noble Lord, Lord Dubs, and I agree with the importance of us carefully assessing whether asylum seekers have a well-founded fear of persecution, as required under Article 1(A)(2) of the convention, we do not agree with these amendments because, taken together, they will essentially maintain the current standard of proof system. In so far as my noble friend Lady McIntosh of Pickering said that it was, to a certain extent, a probing amendment, let me try to explain.

First, this is not about setting aside decisions of the court. The courts are there to interpret the legislation as it stands—that is what they do. Parliament is entitled to change the legislative background, in so far as it is consistent with our treaty obligations. Clause 31 sets out a clear, step-by-step process. I hear the point made by the noble and right reverend Lord, Lord Sentamu, that it should be—so far as legislation can be—in simple language and a clear test. The problem at the moment is that there is no clearly outlined test as such. There is case law, there is policy and there is guidance in this area, but the current approach leads to a number of different elements being considered as part of one overall decision. What we seek to do here is to introduce distinct stages that a decision-maker must go through, with clearly articulated standards of proof for each. We believe that this will lead to better and more consistent decision-making.

At its core, in Clause 31(2) we are asking claimants to establish that they are who they say they are and that they fear what they say they fear to a balance of probabilities standard. That is the ordinary civil standard of proof for establishing facts, and those are facts in Clause 31(2); namely, more likely than not. It is reasonable, I suggest, that claimants who are asking the UK for protection are able to answer those questions. We have looked carefully, of course, at the often difficult situations that claimants might come from and the impact that might have on the kinds of evidence that they can provide. However, we consider that our overall approach to making decisions, which includes a detailed and sensitive approach to interviewing, allows all genuine claimants an opportunity to explain their story and satisfy the test.

There is international precedent that supports our decision to raise the threshold for assessing the facts that a claimant presents to us to the balance of probabilities standard. Both Canada and Switzerland—highly respected democratic countries, dare I say it—have systems which examine at least some elements of a claimant’s claim to this higher standard. Respectfully and rhetorically, let me ask this of the noble Baronesses, Lady Ludford and Lady Bennett of Manor Castle. The noble Baroness, Lady Ludford, said that this was confusing and complex. The noble Baroness, Lady Bennett of Manor Castle, said that she had horror at it. The higher standard is used in Switzerland. Does the horror extend to Canada and Switzerland as well? There is nothing wrong in principle with adopting the higher test for some parts—I will come to it in more detail—of the decision-making tree.

Baroness Ludford Portrait Baroness Ludford (LD)
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Does the Minister recall that I did not just say that it is about the higher standard? It is about having different limbs and different requirements under those different limbs, and switching from “reasonable likelihood” to “balance of probabilities” as part of the composite test, which is not holistic but is in different parts. That is what is confusing, not just a change in the standard of proof.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, with the greatest respect, it is not confusing at all, because Clause 31(2) establishes the facts, and that is all a balance of probabilities. Then, in Clause 31(4), the decision-maker turns to questions of the future. It is at that stage that the reasonable likelihood test is the appropriate test, because the decision-maker is looking to assess what might happen in the future. That is why we have a lower test at that stage. It is quite usual in law to have different stages of a test and different levels of probability at each.

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Moved by
106: Clause 36, page 37, line 18, leave out from “Kingdom” to “country” in line 20 and insert “for a substantial period and were given or could reasonably have expected to have been given protection under the Refugee Convention in that other”
Member’s explanatory statement
This amendment would give effect to the Joint Committee on Human Rights’ recommendation that clause 36 be amended to ensure that it does not contradict the protection Article 31 provides to asylum seekers who have passed through other countries on their way to the UK.
Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, in moving Amendment 106 in the name of, and at the invitation of, the noble Lord, Lord Dubs, I will speak also to Amendments 109 and 110.

If Clause 36 is not amended or deleted, it will contradict Article 31 of the refugee convention. It seeks to punish or penalise a refugee for arriving in the UK to make an asylum claim by a route that took them through other countries. The requirement in the refugee convention to come directly was intended only to prevent a person who had acquired refugee status and protection in one country deciding to switch to another. Excluding a person from asylum in the UK simply because they stopped in France, Germany or Belgium, perhaps for a night’s rest, is completely unreasonable. The UK courts have confirmed that any merely short-term stopover en route to an intended sanctuary cannot forfeit the protection of Article 31 of the convention.

Any other interpretation, as the Government seek to impose in Clause 36, means, as in so much of this Bill, a shirking of the sharing of international responsibilities, such that looking after refugees falls overwhelmingly on countries neighbouring the countries of conflict from which the person is seeking to escape. Therefore, Amendment 106 would at least amend the clause, which, however, we might find later, needs to be deleted. I beg to move.

Lord Etherton Portrait Lord Etherton (CB)
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My Lords, I will speak to Amendment 107 in my name, which relates to Clause 36 and provides that a refugee will have come directly to the United Kingdom for the purposes of Clause 11, notwithstanding that

“they have passed through the intermediate country on the refugee’s way to the United Kingdom by way of short-term stopover”.

Those words in the amendment reflect the reasoning and decision of the Administrative Court in Adimi, where my noble and learned friend Lord Brown presided. They also reflect the approval of Adimi by the Appellate Committee of this House in a case called Asfaw.

In this respect, Clause 36 is an important part of the Government’s policy. The reason for that is that it provides a definition of “directly” for the purposes of Clause 11 that makes a distinction between group 1 and group 2 refugees. Under the provisions of Clause 11, if the refugee does not come directly from the place of persecution, they inevitably cannot be in group 1.

Secondly, it is important because, as I pointed out in a previous debate on this Bill, the provisions for describing coming to the United Kingdom directly, as defined in Clause 36, also reflect the provision in the admissibility provision in Clause 15. Your Lordships will recall that, in Clause 15, if there is a connection with another state, the refugee’s claim is inadmissible; in fact, it is not recognised as a claim at all and there is no right of appeal. Clause 15 provides that, if you fall within one of the five conditions inserted in the Nationality, Immigration and Asylum Act 2002 by the clause, you have a connection. One of those conditions, condition 4, is that

“the claimant was previously present in, and eligible to make a relevant claim to, the safe third State … it would have been reasonable to expect them to make such a claim, and … they failed to do so.”

So there are two essential elements of the policy behind the Government’s provisions for asylum, where the question of the meaning of coming “directly” is extremely important. I pointed out to the Minister, the noble Baroness, Lady Williams, that there was a muddle here. If condition 4 in Clause 15, as I have described it, is satisfied, you never get to a distinction between group 1 and group 2 because your claim is inadmissible. The noble Baroness was going to look at that and let me know the position from the Government’s perspective, but I have not yet heard from her.

Before I address what coming “directly” means—as I said, my amendment reflects the reasoning and conclusion in Adimi, and the adoption of the decision in Adimi by the Appellate Committee of this House in Asfaw—I want to say a couple of things about what appears to be the approach of the noble Lord, Lord Wolfson, to interpretation. I do not think you need to be a lawyer to appreciate that if, under the aegis of the United Nations, you agree with other states in the world that you will conduct yourself in a particular way and that an agency of the United Nations has a responsibility for overseeing both the implementation of that agreement and that disputes between member states in relation to the meaning and the application of the agreement—here, the refugee convention—will be referred to an international court, there must be a point in time when one has to identify core values. If there are no core values, there is nothing to adjudicate.

The noble Baroness, Lady Chakrabarti, referred to Article 35, which requires member states to co-operate with the United Nations body responsible for oversight in relation to the implementation of the refugee convention. So what one has to do here is decide whether what the Government are doing in putting forward these proposals goes beyond the core principles in the refugee convention, which must be applicable generally to member states—otherwise, all the clauses I have referred to, Article 35, co-operation and adjudication by a court are totally meaningless and impracticable.

So I take issue with the broad statement of principle, as I understand it, put forward by the Minister. He said that it was perfectly acceptable for every member state signed up to the refugee convention to decide, from its perspective, what the convention meant. If that were correct and he was saying that it was for Parliament to decide what it meant for the United Kingdom, it would mean that changes could be made by each successive new Government as to what they felt would be appropriate to support their policy. Well, that is obviously nonsense, if I may respectfully say so.

What the courts have done—and this would be the approach of the all the courts of the countries signed up to the convention—is try to understand what the refugee convention was intended, by those who made it, to mean. The starting point is always the travaux préparatoires leading up to the convention—what was said and what was done—and then trying to understand whether there has been a deviation and, if so, why. That has been exactly the approach put forward and implemented in both Adimi and Asfaw.

The starting point, inevitably, for the interpretation of this particular convention is, as I think the Minister said, the Vienna convention on the interpretation of treaties. I do not think it has yet been said that we are entitled to change, and that we have changed, that treaty according to what we think it ought to say. It provides in Article 31.1:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”


That phrase, as has been noted by the noble Lord, Lord Rosser, I think, was applied by the UK’s highest court, the Supreme Court, in a case called ST (Eritrea) in 2012 as meaning that there is a duty to give the refugee convention

“a generous and purposive interpretation, bearing in mind its humanitarian objects and the broad aims reflected in its preamble”.

I have to say as a starting point that I have seen nothing so far in this part of the Bill which is a “generous and purposive interpretation”, having regard to humanitarian objects and the broad aims reflected in the preamble of the 1951 convention. Every provision that people have addressed appears to be, as it has been put, a mean-spirited approach to refugee applications.

It is against that background that I now turn to the meaning of “directly”. I have already referred to the clear decision in Adimi on this point about stopping at intermediate countries by way of short-term stopover. Just to give this a bit of flesh, what the noble and learned Lord, Lord Brown, said then was:

“I am persuaded by the applicants’ contrary submission, drawing as it does on the travaux préparatoires, various Conclusions adopted by UNHCR’s executive committee … and the writings of well respected academics and commentators … that some element of choice is indeed open to refugees as to where they may properly claim asylum. I conclude that any merely short term stopover en route to such intended sanctuary cannot forfeit the protection of the Article, and that the main touchstones by which exclusion from protection should be judged are the length of stay in the intermediate country, the reasons for delaying there (even a substantial delay in an unsafe third country would be reasonable were the time spent trying to acquire the means of travelling on), and whether or not the refugee sought or found there protection de jure or de facto from the persecution they were fleeing.”

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Lord Hodgson of Astley Abbotts Portrait Lord Hodgson of Astley Abbotts (Con)
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My Lords, I shall be very brief. I am trying to work out exactly what I am being asked to agree to here. Perhaps I may ask the noble Baroness, Lady Ludford—maybe not the noble Lord, Lord Dubs—and certainly my noble friend on the Front Bench: am I being asked to end or at least change the first safe country principle by accepting these amendments? If that is the case, I have grave concern about an increase in what is known as forum shopping. Perhaps I can say to the Hansard writers that forum is spelled “forum” and not “foreign”, which is how it was reported last time. Foreign shopping is what you go to Paris to do; forum shopping is a rather more serious matter.

It is important because this country is an exceptionally attractive place for people seeking to find the best future for themselves. I explained last time that the very fact that debates are going on your Lordships’ House shows how much concern we have to make sure that the rights of people are looked after. It is also an extremely flexible job market once you are here. Getting and maintaining a job is much easier than in some of the areas such as France, where there is a much more rigid job market. There is a non-contributory health and social security system. There is a diaspora from nearly every country in the world. Your mates are here, so you want to come here to join them. We would all want to join our mates. As a last point, you have learned the English language, which is the lingua franca of the world and, in particular, the lingua franca of technology.

I hope that, when my noble friend comes to answer the debate, he will bear in mind that, if we were to accept this, it will open up the borders for people who are seeking—I do not say that they should not seek—the best future for themselves and, as such, are not abiding by the first safe country principle. We are not in a position to provide the answer to a lot of these people.

Baroness Ludford Portrait Baroness Ludford (LD)
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I know the noble Lord has listened to a lot of the previous debate. He will know there is no such thing as a first safe country principle under the refugee convention. I tried to explain what the obligation was—namely, not to move on if you have refugee status or protection in a country. The UNHCR has made it clear that there would never have been a refugee convention if there had been a safe first country principle, because countries abutting the problematic countries—for example, Jordan, Iran and Pakistan—have had to accept everyone. No other countries like the UK would ever have had any refugees because we do not abut conflict zones. I am sorry, but this must be rebutted every time it is trotted out.

Lord Brown of Eaton-under-Heywood Portrait Lord Brown of Eaton-under-Heywood (CB)
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I will address Clause 36 very briefly, which I discussed last week in the context of Clause 11. I confine myself today to asking two questions.

First, do the Government accept, as I suggest they must, that Clause 36 would overrule the judgments of Lord Bingham and, among others, the noble and learned Lord, Lord Hope of Craighead, in Asfaw, fully affirming what had been said on the relevant issues in the judgment I gave in the Divisional Court in Adimi? This has all been elaborated on today by my noble and learned friend, Lord Etherton.

Secondly, if so, are the Government overturning Asfaw and Adimi because, disinterestedly, they genuinely think those decisions are clearly wrong—or because they think an alternative and more anti-asylum seeker interpretation may arguably be available to them?

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Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I am certainly not trying to be flippant. What I am saying is that we have a refugee convention that sets out our international obligations. We are abiding by those international obligations. It may—I underline “may”—be that a convention entered into in 1951 is not absolutely suitable for the world of 2022. That might be the answer. At the moment, however, my focus as a Justice Minister is on making sure that this country abides by its international obligations, and that is what we are doing. I invite the noble Baroness to withdraw the amendment.

Baroness Ludford Portrait Baroness Ludford (LD)
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My answer to that last point is that if that is what the UK Government feel, they should convene a conference to renegotiate the refugee convention, but they are not doing that. A large number of noble Lords in this Committee believe that the Government are riding roughshod over the refugee convention in a way that demeans this country and sets an extremely poor example, not least to those countries on the front line, which are taking the overwhelming majority of people seeking protection. We have bandied around the statistics in the last few days in Committee, but we are not in the top category of countries in terms of the numbers, which are manageable. They would be particularly manageable if the Home Office got its act together in the way it decides asylum cases initially—if it invested in the initial consideration of the claims and did not make the law ever more complex, with ever more delays and ever more prospects of litigation. It seems we are banging our heads against a brick wall somewhat, but I beg leave to withdraw my amendment.

Amendment 106 withdrawn.
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Moved by
112: After Clause 37, insert the following new Clause—
“Refugee family reunion
(1) The Secretary of State must, within 6 months of the date of the passing of this Act, lay before Parliament a statement of changes in the rules (the “immigration rules”) under section 3(2) of the Immigration Act 1971 (general provisions for regulation and control) to make provision for refugee family reunion, in accordance with this section, to come into effect after 21 days.(2) Before a statement of changes is laid under subsection (1), the Secretary of State must consult with persons he or she deems appropriate.(3) The statement laid under subsection (1) must set out rules providing for leave to enter and remain in the United Kingdom for family members of a person granted refugee status or humanitarian protection.(4) In this section, “refugee status” and “humanitarian protection” have the same meaning as in the immigration rules.(5) In this section, “family members” include—(a) a person’s parent, including adoptive parent;(b) a person’s spouse, civil partner or unmarried partner;(c) a person’s child, including adopted child, who is either—(i) under the age of 18, or(ii) under the age of 25 but was either under the age of 18 or unmarried at the time the person granted asylum left their country of residence to seek asylum;(d) a person’s sibling, including adoptive sibling, who is either—(i) under the age of 18, or(ii) under the age of 25, but was either under the age of 18 or unmarried at the time the person granted asylum left their country of residence to seek asylum; and(e) such other persons as the Secretary of State may determine, having regard to—(i) the importance of maintaining family unity,(ii) the best interests of a child,(iii) the physical, emotional, psychological or financial dependency between a person granted refugee status or humanitarian protection and another person,(iv) any risk to the physical, emotional or psychological wellbeing of a person who was granted refugee status or humanitarian protection, including from the circumstances in which the person is living in the United Kingdom, or(v) such other matters as the Secretary of State considers appropriate.(6) For the purpose of subsection (5)—(a) “adopted” and “adoptive” refer to a relationship resulting from adoption, including de facto adoption, as set out in the immigration rules;(b) “best interests” of a child must be read in accordance with Article 3 of the 1989 UN Convention on the Rights of the Child.”Member’s explanatory statement
This new Clause would make provision for leave to enter or remain in the UK to be granted to the family members of refugees and of people granted humanitarian protection.
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Baroness Ludford Portrait Baroness Ludford (LD)
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On behalf of my noble friend Lord Paddick, I will move Amendment 112 and speak to Amendments 113 and 117, which I have co-signed. The reason I have been given the honour of moving Amendment 112 is that it reproduces my Private Member’s Bill, which in fact has its origins with my noble friend Lady Hamwee and will have its Committee stage just after recess.

The Conservative Party likes to call itself the party of the family; I believe it needs to demonstrate this. Amendment 112 would build on existing safe routes for family reunion to enable a wider range of family members to reach the UK without undertaking unsafe journeys. This is the real way to stop most of the dangerous channel crossings and put the smugglers out of business.

In the letter and attached chart that the Minister sent to the noble Lord, Lord Dubs, and kindly made available to us all, the Government set out the current safe routes. Even under part 11 of the Immigration Rules, while adult refugees do not have to pay a fee for the visa they do have to pay for travel to the UK, and the integration loan cannot be used for that. Legal aid is also not available, at least not in England and Wales—I do not know about Scotland or Northern Ireland—and they can bring in only their spouse and their under-18 children.

As in my Private Member’s Bill, Amendment 112 would permit dependent children up to the age of 25, as well as adopted children. Crucially, it would permit children recognised as refugees to sponsor their parents and siblings to join them. Although sibling reunion is in theory possible under paragraph 319X of the Immigration Rules, in practice the barriers are often insurmountable. Not only does the visa cost almost £400 but the young sponsor has to show that they can financially support and accommodate their sibling without recourse to public funds, and that the justification for reunion is “serious and compelling”. All these are tough tests to fulfil. Paragraph 297, which governs whether children can join parents or non-parent relatives who have settlement status imposes a fee of £1,500, and then the same serious and compelling test.

Despite promising in a response to the consultation on the New Plan for Immigration to give creator clarity, no guidance has been forthcoming. Can the Minister tell us in her response when that guidance will be forthcoming, and how many visas have been issued under paragraphs 319X or 297 over the last five years?

I reaffirm my support for Amendment 113 from the noble Lord, Lord Coaker, and Amendment 117 from the noble Lord, Lord Dubs. These both aim to boost family reunion opportunities for unaccompanied minors and for entry to seek asylum, in part substituting for the loss of the Dublin regulation. I also support other amendments in this group. I beg to move.

Lord Hylton Portrait Lord Hylton (CB)
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My Lords, I have added my name to three amendments in this group. I note that they are all new clauses. New clauses are necessary to improve this Bill, and they are essential to humanising our present systems, let alone what may emerge from the Bill once it becomes an Act.

Reuniting families split by wars and persecution brings huge benefits; I think we can all agree on that. Amendment 112 enfranchises both children and their parents. It also empowers the Secretary of State to add new kinds of relationships. Amendment 113 should, as the noble Baroness, Lady Ludford, has just mentioned, reduce dangerous crossings of the channel.

On Amendment 114, we all know that the neighbours of Syria and Iraq have been subjected to and have accepted huge influxes of people. The same is also true of southern European states. For these reasons, there is an urgent need for equitable burden sharing. This, in turn, will require much greater international co-operation. We can do our part in this country by using family reunion. Our neighbours and allies are entitled to know what our intentions and proposals are in this respect.

The wording of all three amendments can, I expect, be improved. Will the Government accept at least their principles, take them away and bring them back in pristine condition?

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The amendment could simply create further incentives for more adults and children to be encouraged, or even forced, to leave their family and risk hazardous journeys to the UK in order later to sponsor qualifying extended family. That plays into the hands of criminal gangs which exploit vulnerable people and goes against the main intention of the Bill. We must do everything in our power to stop this dangerous trend. I hope that, with that, the noble Baroness will be happy to withdraw her amendment.
Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, I thank the Minister, who has given us detailed responses. Some of her points do not really take account of what inspired this set of amendments, which is that people do better if they have the support of their family. It may not be quantifiable, but my noble friend Lady Hamwee mentioned the case of a sibling. I can imagine having that my brother or sister with me in a strange place would be an enormous support. The way the Minister replied—which is obviously in her brief—was all about the numbers: never mind the quality, feel the width. We are talking about quality of life, integration and the chances that the person who gets status would have to thrive in the UK. The Home Office is a bit blinkered on this matter.

The Minister told me that the promised guidance on paragraphs 319X and 297 would be coming “in due course”. That is a phrase that always chills the spine; I hope it is not too far away. It would be interesting to know what constitutes “serious and compelling” circumstances, as people are finding that it is very difficult to get through that test. I also note that she said that there is no data in published statistics on how many applications are granted under either of those two routes, and I look forward to her successful efforts to find that. It is a bit surprising that there are no published statistics on that, but I hope she has success in locating some.

The Minister said that there is no need for statute. I obviously disagree, because I am promoting a Private Member’s Bill that would put it into statute. A lot of the problem here is that there is too much discretion and moving of the goalposts, so people do not know what they can rely on. It is all just too difficult, and there are numerous hurdles.

I listened to the Minister. I am fairly disappointed with what she said, but, as of now, I cannot do other than beg leave to withdraw the amendment.

Amendment 112 withdrawn.
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Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, I am pleased to support Amendment 115, in the name of the noble Lord, Lord Dubs, which I have co-signed. Of course, it aims to provide a safe route for unaccompanied children from countries in Europe and broadly reproduces what we all know as the Dubs amendment to the Immigration Act 2016. There have been warm words, deservedly, about the role and record of the noble Lord, Lord Dubs; what better way to put that into something concrete than for the Government to accept Amendment 115?

I support all the amendments in this group, but I will just speak in support of Amendment 116, in the name of a noble quartet of Conservative Peers, which would provide for “at least 10,000” refugees to be resettled annually. The noble Lord, Lord Kerr, has discussed the ins and outs of that figure, but it is better than 1,000 a year, which we hear was the low achievement last year. This figure happens to be Liberal Democrat policy, so I very much agree that it is a moderate and sensible amendment. As I say, I support all of the other amendments in the group.

Lord Horam Portrait Lord Horam (Con)
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My Lords, I am not sure that I should support a Liberal Democrat policy this evening; none the less, I agree with what the noble Lord, Lord Kerr, said about the importance of targets. I am sure that one of the reasons that local authorities are reluctant to accept more people is the uncertainty that they have at the moment. They genuinely have a shortage but, inevitably, they hold back when they do not know exactly how many are expected.

I have long argued for targets in this area; I think they are an important part of it precisely because you need sensible planning, frankly, and this could be a way forward. Whatever the numbers may be, we ought to have a proper debate each year on refugees, asylum seekers and immigration as a whole, in which the Government’s plans are set out and we can all make a contribution, in the Commons as well as here, and decide what should be the targets for the following year. This would give everyone, including local authorities, some confidence and certainty about what they are expected to do.

I am afraid I do not think that that will actually reduce the numbers of people coming across the channel—I am sorry to disagree with the noble Lord, Lord Kerr, on this point—for the reasons that I spelled out previously. Demand is so great that people would still try to cross the channel, even if we expanded the number, for certainty, of people coming across under safe schemes. None the less, the idea of having transparency and target setting is very valuable.

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Moved by
120: Clause 39, page 40, leave out lines 5 to 9
Member’s explanatory statement
This would give effect to the recommendation of the Joint Committee on Human Rights to prevent “arrival” in the United Kingdom without a valid entry clearance, rather than “entry” into the United Kingdom without a valid entry clearance, becoming an offence.
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Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, the effect of Clause 39 is to criminalise the act of seeking asylum in the UK, even if the person has no option but to flee. Clause 39 makes arriving in the UK without leave, without ever actually entering the UK, a criminal offence. I am therefore moving Amendment 120, with the invitation of the noble Lord, Lord Dubs, which would remove the relevant part of Clause 39.

I note that whereas a person violating Clause 39 could get a sentence of four years in prison, I recently saw in the media a case of modern slavery which attracted a suspended sentence. So having the temerity to arrive to claim asylum is considered multiple times more serious than enslaving and exploiting someone.

Clause 39 criminalising arrival would cover people intercepted in UK territorial waters and brought into the UK, and presenting themselves to an immigration official to claim asylum. They would arrive, even if they do not enter. Note that this is not targeted at traffickers and smugglers but at the sorry individuals being smuggled and seeking asylum. Why should they be criminalised? Remember that no visa exists for the purpose of claiming asylum—the noble Lord’s amendment wants to rectify that—and it is impossible to claim asylum without coming to the UK. It is a classic Catch-22 situation.

The clause is inconsistent with Article 31 of the refugee convention, which obliges signatories to

“not impose penalties, on account of their illegal entry or presence, on refugees … present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”

This non-penalisation is at the core of the refugee convention—even Australia has never considered criminalising irregular entry.

Of course, if an asylum seeker becomes a criminal as soon as they arrive, this can have implications for their future as a refugee. They will have a criminal record and be deemed to be not of good character, and this will impact on their ability to integrate, to settle and, down the line, to acquire British citizenship.

As we discussed on an earlier group, the definition of “particularly serious crime” is being lowered to a 12-month sentence. Since they could get a four-year sentence under Clause 39, or 12 months on a summary conviction, the person could lose their protection against expulsion and refoulement simply as a result of arriving in the UK to claim asylum. It is pernicious to criminalise someone who simply arrives in, not enters, a country— there has always been a distinction between the two. I am afraid that it is somewhat Kafkaesque—I maybe overuse that phrase—as well as pernicious and unnecessary. I beg to move.

Baroness McIntosh of Pickering Portrait Baroness McIntosh of Pickering (Con)
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My Lords, I rise to speak to Amendments 121 and 122. I thank the noble Baroness, Lady Hamwee, for lending her support in signing Amendment 122. As the noble Baroness set out, and as we heard from the Deputy Chairman, if Amendment 120 carries favour with the Committee, Amendments 121 and 122 could obviously not be moved.

I intend these amendments to probe my noble friend the Minister. The thinking behind this is that it represents the concerns expressed to me by Law Society of Scotland, to which I am grateful for drafting the amendments and the wording that it has used. Rather than just deleting the offending wording in new subsections (D1) and (E1), I am proposing to delete “arrives in” from the relevant sections of Clause 39 and insert “enters” instead.

Clause 39 of the Bill adds a new component to the existing offence of illegal entry, and subsection (2) thereof adds new subsections to Section 24 of the Immigration Act 1971. New subsection (D1) makes it an offence for someone who “requires entry clearance” to arrive in the UK without “a valid entry clearance”. An entry clearance is a visa issued before travel, because it becomes leave to enter when the person enters the UK. The burden of proving that a person holds valid entry clearance lies on that person. This is of concern, given that EU citizens are not routinely given any physical evidence of their entry clearance if they apply using the UK Immigration: ID Check app—no visa vignette is placed in their passport. So the key addition to the offence provision is to make arrival an offence.

The Explanatory Notes clearly state:

“The concept of ‘entering the UK without leave’ has caused difficulties about precisely what ‘entering’ means in the context of the current section 24(1)(a) of the 1971 Act.”


Entering is defined in Section 11(1) of the Immigration Act 1971, which I recall studying at the University of Edinburgh some time ago, as disembarking and subsequently leaving the immigration control area. Arrival is not given any technical legal definition, so it will simply mean reaching a place at the end of a journey or a stage in a journey. So it is unclear whether a person needs to reach the mainland in order to arrive in the United Kingdom.

My first question to my noble friend is: can she clarify at what point a person arrives in the United Kingdom? The Explanatory Notes and the separate definitions of the United Kingdom and United Kingdom waters seem to suggest that arrival on the mainland is necessary. The new provisions will allow prosecutions of individuals intercepted in UK territorial waters and brought into the UK, who arrive in but do not technically enter the UK, as set out in paragraph 388 of the Explanatory Notes.

Lord Horam Portrait Lord Horam (Con)
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My Lords, I agree with the noble Lord, Lord Dubs, that there has to be some shared responsibility in Europe. In particular, his point about Greece, Italy and Spain was well made. They have had to bear the brunt of the inflow of asylum seekers to a very difficult extent, and I understand their problems. The noble Lord was also right that, whatever other solutions may be forthcoming on this very difficult issue, we will eventually have to have some agreement with the French. I am rather hopeful that, with the departure of the noble Lord, Lord Frost, we may have a better chance of reaching agreement—I say that with no malice to the noble Lord, Lord Frost, who I am sure did a very difficult job his way, but none the less, the fact that he has gone seems to me to be rather good news from the point of view of having a rather more diplomatic approach to France. I am glad that the Foreign Office in particular may now be in charge of that. I am sure that the noble Lord, Lord Kerr, will agree that it is probably better for the Foreign Office to have more say in this matter than under the previous arrangements.

What I am concerned about reflects what the Chief Whip said earlier on. Clauses 14 and 15 seem to do no more than bring into British law what we already had when we were in the European Union—that is all they do—using the Dublin regulations and the Spanish protocol. This is nothing more than a transfer. We have all the rights that we enjoyed when we were members of the European Union to take account of particular circumstances and difficulties which people may have in getting evidence and so forth. All these fairly extensive amendments are already taken account of by our existing rights, so I do not see how we can spend very long on these clauses, given that they really do no more than a transfer job.

Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, I do not think that the noble Lord is right about EU arrangements. I remember as an MEP fighting hard on the inadmissibility provisions in EU directives. On the Dublin arrangements, my understanding is that the UNHCR is satisfied that those arrangements were compliant with the refugee convention. I contend that Clause 15 is not, hence I have put my name to some of the amendments in this group. My noble friend will propose that Clause 15 be removed altogether, as it fails to recognise the need to share asylum responsibilities with other countries in order for the international system to work effectively, but at least some changes to the clause are necessary, and so I have co-signed the amendments suggested by the JCHR, tabled in the name of the noble Lord, Lord Dubs.

Amendments 69, 70, 71 and 75 all seek to restrict and improve the operation of the scheme proposed in Clause 15. I also support Amendment 68, and convey the apologies of my noble friend Lord Oates, who has a conflict with other business. Clause 15 is about proposals whereby the UK would attempt to persuade some other country to take responsibility for the asylum applicant if it considered that there was a connection to that state, broadly defined, or even if there was no connection at all.

Amendment 69 seeks to ensure that the definition of “safe third State” means it affords the protection and rights to which the person is entitled, so there is no real risk of them experiencing persecution, a violation of their human rights or refoulement, and that there is access to fair and efficient asylum procedures and refugee convention rights. Amendment 70 seeks to ensure that any removal should be only to a state with which the person has a connection. Amendment 71 requires that, unless formal and legal binding return arrangements are in place with the state in question—such as was the case with Dublin, which is why the UNHCR gave it its blessing—and removal takes place within a reasonable period. Absent those conditions, there must be no declaration of inadmissibility and the claim must be considered in the UK. Amendment 75 removes and rejects the suggestion that the UK can remove a claimant to a country in which the UK Government think it would have been reasonable for them to have made a claim, even if they had never visited that country.

As I said, even if these four amendments were adopted, Clause 15 would still be flawed. It would create yet greater delays, backlogs and costs in the asylum system. As we keep saying, the Home Office says the system is broken yet it wants to shoot itself in the foot by having ever-more complicated and long-winded procedures. It would also create greater anxieties for claimants and disruption to the international system. Therefore, Clause 15 must be at least amended, if not removed.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, unsurprisingly, I agree with everyone who has spoken so far except, I am afraid, for the noble Lord, Lord Horam. This is why: we are out of the EU now and have taken back control of our borders and laws. This is the Government’s policy. We are no longer in this family of nations, this bloc called the EU. Therefore, on what logical basis should we be saying that, by definition, we will never consider a claim made by an asylum seeker from that group?

It is one thing when you are in the EU to say that we do not need to be taking refugees from the EU because there is free movement in the EU and we are part of that bloc. You might well say that it will be inadmissible and that we do not consider refugee claims from within that family of nations of which we are a part, but we are not in it anymore. We have taken back control. Therefore, we are no longer able to assert pressure on others in that group to buck up their ideas about human rights or to threaten the Hungarians with being ejected from the EU if they do not sort out their human rights record. We do not have that leverage anymore. Therefore, it is our obligation as global Britain, as great believers in human rights and a signatory to the refugee convention, that if Hungarians are being persecuted we will consider their claims for asylum because we are better than them and we have taken back control in a lovely global Britain sort of way. It is totally illogical for Clause 14 to be part of the Bill.

More generally, the noble Baroness, Lady Ludford, made an important point about complexity and efficiency. In an earlier group, everyone in the Committee agreed that decision-making needs to be faster and better. That is in everybody’s interest, whichever side of the argument we are on. Creating lots of convoluted provisions about what is inadmissible, before you even consider whether someone is being persecuted, will only make life harder for caseworkers in the home department. I have seen Governments of both persuasions do this over the years. They think they are making it easier, but they actually make it harder by creating more convoluted hoops for people to jump through before their claim is even considered. It is better to have a clean slate and to consider somebody’s circumstances: do they qualify for asylum or not? It would be much easier without all these hoops, so Clauses 14 and 15 should go.

Just consider the claims: if countries are safe, they are safe. If people are not telling the truth, test their credibility and make that decision. Of course, I agree with everything my noble friend Lord Dubs said about safe countries, who has or does not have an association with one and the Government making the decision for them on a spurious basis.

Finally, I agree with the noble and learned Lord, Lord Etherton, it is a well-established principle of refugee convention jurisprudence the world over that you do not have to be persecuted just by agents of the state. States have a duty to protect all the people in their state. If they do not do it, there can be behaviour and persecution by non-state agents within that territory. If the state is not offering protection, if there is no effective rule of law, it is not enforcing the criminal law and is allowing Roma or gay people or whoever to be persecuted by fascist skinheads in Hungary or whatever it is, that is persecution for the purposes of the refugee convention.

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Lord Kerr of Kinlochard Portrait Lord Kerr of Kinlochard (CB)
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No other country is in this position because other countries believe that the refugee convention means what it says. I am uneasy, and I think the noble Lord, Lord Rosser, must be right, but what makes this particularly peculiar is that we are considering inadmissibility here. Suppose there were an agreement in place. Suppose we were handling a case—the Minister says that it is best done case by case—but we have not done anything except say, “This is inadmissible.” We do not know anything about this chap. He has not had an appeal turned down and has not been categorised in group 1 or group 2; he has simply been declared inadmissible. What does the diplomatic post in the intended recipient country have to go on?

Baroness Ludford Portrait Baroness Ludford (LD)
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Surely the noble Lord, Lord Rosser, is right: there is no realistic possibility. The Minister keeps “not confirming” that there are no return arrangements in place yet; she lives in hope, but the reality is that there are none and it seems unlikely that there will be any in the near future. I know there are hopes for one with France after the presidential election; well, good luck with that.

The Government wanted Brexit, they got Brexit done and Brexit meant that we no longer enjoy the Dublin regulation. Realistically, the countries that she is talking about sending people back to are mainly EU countries. Frankly, the chances of having a readmission agreement with the EU are for the birds, so we are going to be seeking bilateral agreements—and none is in prospect. So Clause 15 is indeed basically window-dressing.

The noble Lord, Lord Rosser, mentioned that apparently 6,500 cases have been declared inadmissible. All we do by kicking the can down the road is create more people waiting, more people demoralised and more work for the Home Office. It is all completely unrealistic.

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Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, I will speak to the five amendments in this group—Amendments 83, 88, 90B, 95A and 137, and the question of whether Clause 25 should stand part—all of which I have co-signed or are in my name. The four I have co-signed are inspired by the Joint Committee on Human Rights and are in the name of the noble Lord, Lord Dubs. He has had to leave and has asked me to give his apologies.

The provisions whereby the presentation of evidence, after a date specified by the Home Office or in a priority removal notice, is required to be treated as damaging to credibility or to be given minimal weight are unfair, unjustifiable and should be removed. I agree with everything the noble Lord, Lord Coaker, said.

I have also tabled Amendments 90B and 95A in the alternative, as it were. Under Clauses 21 and 25, the decision maker on priority removal notices or in an asylum or human rights claim would at least be obliged to consider whether the presumption of damage to credibility was fair, rather than looking solely at whether there were good reasons for the delay. Taking lateness into account should be rejected if it would be unfair.

The motivation for all these amendments is fair access to justice—both to comply with the European Convention on Human Rights and, as set out in Amendment 137 about removal notices, to uphold a common-law right to access justice. Yesterday, I had the pleasure of being at the Joint Committee on Human Rights session at which the noble Lord, Lord Wolfson, gave evidence. We discussed having the common law as an inspiration, as well as the ECHR, in the application of human rights. I am sure the noble Lord will be able to tell me that the Government at least accept Amendment 137.

I do not need to say more because the noble Lord, Lord Coaker, put it very well. To say that evidence is not convincing is one thing; to say that, because it has not been submitted by date X it is incredible or has no weight, is putting process over substance.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, I shall speak against Clause 25 standing part. I agree with so much of what has already been said. This is a particularly tawdry little clause in an outrageous Bill, which, as we have heard, has been slammed by UNHCR, the custodian of the refugee convention, by the JHCR, Amnesty International, Human Rights Watch and everybody, it seems, except noble Lords opposite.

My noble friend Lord Coaker need not apologise for not being a lawyer. It is not necessary to be a lawyer to see how tawdry Clause 25 is and how it absolutely puts process over substance.

This area of the law is not about parking regulations, or the tax owed to the Revenue or even major civil or commercial litigation between powerful opposing forces. This is the David and Goliath situation referred to by the noble Baroness, Lady Hamwee. When an asylum seeker presents themselves to whoever—the Border Force or the Home Office—they are putting themselves in the trust of Her Majesty’s Government in the hope that this is the right place to be.

Noble Lords have been making arguments in Committee, and those opposite have been making arguments about forum shopping, wanting better lives and all those things as if they are terrible but, in essence, the refugee convention is about desperate people escaping and having a fair crack at being believed. They may not all be telling the truth. Whether they are or not, they may not all qualify for convention protection, but there should at least be a kind and fair reception and a fair crack of the whip. That means not taking tawdry little process points such as this.

I have been a refugee lawyer, in and outside the Home Office. When I worked as a lawyer in the Home Office—I am going back now to before the new Labour Government, when my first boss was the noble Lord, Lord Howard—we did not take tawdry process points like this. That was in 1996.

In a moment, the ever-avuncular and brilliant advocate, the noble Lord, Lord Wolfson of Tredegar, will get up and tell us not to worry, because this will come into play only when there are no good reasons. So, fear not, Women for Refugee Women, UNHCR, Amnesty International, ILPA and every other bleeding heart. The Home Secretary would call them activist human rights lawyers and they are perhaps almost as contemptible as refugees in her eyes. The noble Lord will say not to worry because, where there are good reasons, this does not come into play and there will not be an issue about evidence.

But why put this in the statute book? Immigration officers, the Secretary of State, the First-tier Tribunal, the Upper Tribunal and SIAC—these bodies are well capable of looking at evidence and credibility. It is an insult to their intelligence for them to look at whether there were or were not good reasons for late evidence. Sometimes late evidence is incredible and sometimes it is perfectly valid, because there are very good reasons—a host of good reasons, more good reasons than not—in relation to trauma.

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Moved by
93: Clause 24, page 28, line 40, after “notice” insert “or a slavery or trafficking information notice”
Member’s explanatory statement
This amendment would give effect to the recommendation of the Joint Committee on Human Rights to amend the Bill to provide those receiving a slavery or human trafficking information notice with an equivalent amount of civil legal services support as for those receiving a priority removal notice.
Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, as I said in an earlier group, the noble Lord, Lord Dubs, who is the lead signatory of these amendments, could not stay so I am moving our amendments in this and the last group.

Clauses 65 and 66 amend LASPO—the Legal Aid, Sentencing and something Act—to allow for people already in receipt of legal aid for an immigration, asylum or human rights claim, under the exceptional case determination procedure, to receive legal aid advice in relation to a referral into the national referral mechanism, whereby they seek a positive reasonable grounds decision as a potential victim of slavery or human trafficking.

However, these provisions help only victims who already receive legal aid and know how to ask for it. It does not cover all victims. Exceptional case funding for legal aid is very difficult to secure in practice, so Clauses 65 and 66 will help only a small number of people, not least, as the Anti-slavery Commissioner has noted, because it requires a lot of time-consuming work up front to get that exceptional case funding and the solicitor is paid only if the application is successful.

The Joint Committee on Human Rights supports the request of the Anti-slavery Commissioner that legal aid advice of seven hours—or preferably more, as my noble friend’s Amendment 94A probes—should also be available to those in receipt of a slavery or trafficking notice in the same way as for those in receipt of a priority removal notice, to avoid victims of severe trauma remaining unidentified and unassisted. The Joint Committee on Human Rights, like others in Parliament, as I know from these Benches, has also repeatedly expressed its concern about legal aid deserts, but that is a wider debate. I beg to move.

Baroness Hamwee Portrait Baroness Hamwee (LD)
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My Lords, I have Amendment 94A in this group. I am sorry that I could not respond to the Minister on the previous group, but I am sure we will come back to that. I was going to observe that the Chamber seemed largely to have cleared, possibly because other noble Lords could not bear this Bill any longer today, but some noble Lords have rejoined us.

It is clearly better that legal aid is available than not, but I am aware, as my noble friend is, of the shortage of provision and some of the problems here. I would say that it is not a matter for today, but actually it probably is. It is very significant, because the words in the Bill will not provide the advice. The Minister has referred two or three times very confidently to the legal aid offer; we are concerned to ensure that that offer has substance.

I have heard over the years of the difficulties of solicitors—if you can find one—advising and taking instructions in immigration removal centres, with the restrictions there on time, of 30 minutes eaten into by the client having to be fetched and then returned. I do not need to say again, but I will in one sentence, that the client often needs a lot of time over a period to tell his or her story.

My amendment seeks to understand how the Government have landed on seven hours. The Minister gently chided me for the use of the term “arbitrary” before. I will acknowledge that my proposal of 20 hours is arbitrary, but it is my way of probing why the Bill provides for seven hours. I asked ILPA whether that would be sufficient, and the reply was:

“I do not think seven hours of legal aid is sufficient to advise on the notice, the person’s immigration status, the lawfulness of removal, and immigration detention. The immigration system is complex, and the Bill makes it more complex through the expedited processes, priority notices, and new definitions/standards … It is also of concern”


that the Bill

“would allow a power to alter that 7 hour time limit.”

There must have been evidence for coming to the seven hours. If that is so, what evidence would the Minister apply to reduce that figure—or indeed extend it? ILPA says it does not

“have a sense as to the specific number of hours needed for this advice, as it would be so case-specific,”

which is entirely understandable,

“including the immigration and procedural history of the case, novelty of any legal arguments, number of bases on which to raise a claim, the legality of detention”

and so on. So I hope that the Minister can flesh out this provision in the Bill so we can understand what the Government think can be achieved with the seven hours of scarce legal aid.

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Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, I am grateful to all those who have contributed. These amendments obviously deal with matters of legal aid, and I remind the Committee that LASPO is the Legal Aid, Sentencing and Punishment of Offenders Act, just to put everybody out of their misery—otherwise they will not be able to sleep when they get home. I will be quick, but I will just make one point: with great respect to the noble Lord, Lord Rosser, this is not a matter of generosity. This is not about the Government being generous. I do not want to sound high-falutin’, but this is about the rule of law. Abiding by the rule of law is not a matter of generosity; it is simply non-negotiable, and this provision is in the Bill because it is a proper and necessary thing to do.

Amendment 93 and 94 seek to provide up to seven hours of free legal aid to individuals with a slavery or trafficking notice. They are unnecessary because existing legal aid rules will already ensure that individuals can receive more than seven hours of advice if they receive a slavery or trafficking notice. The key point to bear in mind—and I accept that this is complex—is that a slavery or trafficking notice can be issued only to individuals who have made a protection or human rights claim. That is relevant because it means that they are already within the immigration system and legal aid is already available in order to make that protection or human rights claim. So, in a case where an individual is in receipt of legal aid for their protection or human rights claim and they then receive a slavery or trafficking notice, they are already entitled to advice on that notice as part of their protection or human rights claim. Importantly, there is no limit on the number of hours that can be provided on someone’s protection or human rights claim. Legal advice is available until the matter is resolved, and it may well be for considerably more than the seven hours—or, indeed, 20 hours.

Baroness Ludford Portrait Baroness Ludford (LD)
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I am really sorry, I know we are looking at the clock, but if I have understood it, and I am sure the Minister is briefed to the hilt, the problem is that he who has, gets more, as it were. If you are already in the asylum system and then you get the notice, you will get even more legal aid—but what if you have not already made a protection claim? What about those people?

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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The noble Baroness must have had access to my notes, because that was just the point I was going to make. I have written down here that I know the Committee will ask about individuals who are not receiving legal aid for their protection or human rights claim—and sure enough, the Committee did. My answer is that there could be multiple reasons for an individual not receiving legal aid in those circumstances. The individual might not have passed the means or merits test, and those two tests, as the Committee will know, are there to ensure that legal aid is targeted at those most in need who cannot afford advice themselves. That is one possibility, and I will come back to that in a moment. Another possibility—and this does happen—is that the individual has just made an application to the Home Office by themselves and has not sorted out a lawyer. If so, I would strongly encourage them to seek out a legal aid lawyer, who would be able to provide more than the seven hours of advice that could be provided.

Turning to Amendment 94A, the short answer to why we have specified up to seven hours in Clause 24 is that a balance must be struck between giving free legal advice and using taxpayers’ money responsibly. Seven hours is intended to reflect that this is an opportunity for initial legal advice to help individuals understand what the notice is and what it is requiring them to. It is available on a non-means-tested and non-merits-tested basis. That means that anyone with a PRN is guaranteed access to legal aid for up to seven hours, but it does not mean that, after seven hours, there is no further access to legal aid. Some individuals will need further advice; it is not intended that seven hours will resolve every immigration issue. At the end of the seven hours, any individual who has an issue within the scope of the legal aid scheme and who passes the means and merits test will be eligible for ongoing legal advice funded by legal aid until the matter is resolved.

I am conscious that that gets us into the territory of means and merits tests. I answered an Oral Question in this area on Tuesday, when I said that there was a review of the means test under way at the moment, on which I have personally spent a lot of time. I hope very much that we will soon be able to go out for consultation on that. We are conducting a really thorough review of the means test.

Finally, I will address the noble Baroness’s concerns that the exceptional case funding scheme might not be up to standard. Respectfully, I disagree. That scheme is specifically designed to act as a safety net and to provide legal-aid funding to individuals who can demonstrate that, without it, their human rights might be breached. In 2019-20, of the immigration cases that applied for exceptional case funding, 80% were granted legal aid, so that shows that the system works. We are continuing to work with legal aid practitioners and the Legal Aid Agency to improve the scheme if we can.

For the reasons that I have set out, I hope that the noble Baroness, speaking also for the noble Lord, Lord Dubs, will be content to withdraw the amendment.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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The noble Baroness’s question is quite broad. She knows that we have had a number of discussions about legal aid, which will continue. I did not do much legal aid in my practice. I do not want to advertise from the Dispatch Box, but my brother-in-law is one of the finest criminal legal aid solicitors in London—I am sure that no one here will ever need his services, but he is absolutely brilliant, none the less.

More seriously, I am very conscious of the need to make sure that people have access to a lawyer with the relevant skill set, because a general right to legal aid is not much use if you cannot find a legal aid lawyer—I absolutely appreciate that. On Tuesday, I explained some of the efforts that we are making in this area. To say any more now might trespass on the Committee’s patience, but I am obviously well aware of this point.

Baroness Ludford Portrait Baroness Ludford (LD)
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I appreciate the care with which the Minister has responded to these amendments. Although he started by saying that they were unnecessary, he conceded that there is a group of people who do not get legal aid. We might differ in our views on how meritorious they are in any claim for legal aid, but he said that they could find a solicitor and get legal aid that way—but that might not be the easiest thing in the world, for reasons that include what was just discussed. I am afraid that I am not really persuaded.

I will read the Minister’s remarks in Hansard, but I do not think that he denied that there are people who do not get legal aid. The fact that the anti-slavery commissioner was on the case with the JCHR shows that it is not just these Benches over here that think that this is an issue. For the time being, I have to accept that the Minister has given his response and I cannot get any further. I beg leave to withdraw the amendment.

Amendment 93 withdrawn.
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Moved by
97: Clause 26, page 31, line 38, leave out from “State” to end of line 39 and insert “is satisfied that—
(a) any relevant appeal brought in relation to the decision would be likely to be disposed of expeditiously; and(b) any relevant appeal brought in relation to the decision could be resolved within the time limits set out in subsection (3) without giving rise to unfairness or injustice.”Member’s explanatory statement
This amendment would give effect to the recommendation of the Joint Committee on Human Rights to limit the cases that are brought within the accelerated detained appeals process, to prevent unfairness or injustice arising.
Baroness Ludford Portrait Baroness Ludford (LD)
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This clause is about accelerated detained appeals. In moving Amendment 97 I will also cover Amendment 99, both of which I have signed. As I have said, the noble Lord, Lord Dubs, is leading on these amendments, but he has had to leave.

I support the deletion from the Bill of Clauses 26 and 27 in order that claimants should retain a meaningful right of appeal. The Government are trying to revive, though with an even wider scope, the detained fast-track system, despite the fact that their arguments were rejected by the Court of Appeal in 2015 and later by the Tribunal Procedure Committee. These provisions would deny access to justice, including for the reason that five days is far too short for a claimant to prepare an appeal, particularly if they are detained—it is even worse if they are in prison or a detention centre. Clause 26 would apply to a greater number of people even than the detained fast track, including those facing deportation.

The Home Office has been struck down and rebuffed twice but is coming back for more. Its decision-making is frequently flawed and unlawful. As we have heard this afternoon, half of all appeals against immigration decisions were successful in the year to June 2019, so people must have access to effective means of appeal.

After the Court of Appeal declared the detained fast track unlawful in 2015, the Government tried to revive it in tribunal rules. However, the Tribunal Procedure Committee said that if the rules were to operate fairly, which is vital given the high stakes for the claimant, they needed procedural safeguards—an additional case management hearing, for example—such that there was no guarantee of a fast conclusion of the appeal. By trying short cuts, the Government are yet again creating more potential delays. Justice cannot be achieved with the kind of short cuts the Government are trying in this Bill.

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Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar
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My Lords, I think we are at cross-purposes. I was not saying that the language had not changed; I was saying that the test in Clause 26(5) is the same test as in Clause 23(7). On the question of whether the language has changed, I think the noble Lord is right. I will write to confirm the position—I do not want to get it wrong at the Dispatch Box—but I think there was a change in this clause. The test as set out is entirely proper. Is the only way that justice can be done to take the case out of this tribunal? If that is the only way justice can be done, it ought to be done. If this tribunal therefore, by obvious logic, can deal with the case justly, it should do so.

On the first question, I am not sure how much more I can say. The Secretary of State must consider, in order to certify a case as suitable for an accelerated detained appeal, that any appeal to that decision would be likely to be disposed of expeditiously and that the other conditions are met. In coming to that conclusion, the Secretary of State would obviously have to look at all relevant factors. I am not sure that I can take it much further than that, but let me look again at the noble Lord’s question in Hansard. If I can add anything more, I will do so, so he is in possession of everything I can say before we look at it again—no doubt on Report.

Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, I thank the noble Lord again for his detailed responses. On the first point, on Amendment 97, I just hope that we do not find ourselves back in litigation. He asserts that the Bill avoids the pitfalls that the Court of Appeal found in 2015 and that the Tribunal Procedure Committee found later. Let us hope so, because obviously, resorts to litigation will also be something that gums up the system, which the Home Office already says is broken. Time will tell if this is going to stay as it is.

On Amendment 99, I believe that the noble Lord, Lord Rosser, is right. If my memory serves, the wording has changed since the Bill was in the other place. Certainly, the JCHR would suggest that wording that says that the tribunal “must”—not just “may”—if the interests of justice and fairness require it, take an appeal out of the accelerated detained system is stronger than the wording that is there at the moment. It says that the tribunal “must” if—and it is a broader test—it is in the interests of fairness and justice. It is a better test, and a fairer and more just test, so I am disappointed that the Minister does not like that amendment—although I guess I am not terribly surprised. On that note, I can only withdraw my amendment.

Amendment 97 withdrawn.
Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath (Lab)
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My Lords, time is against us, so I will be really brief. From all our debates so far, I am convinced that the issue of inconsistent policing is the one where I would put most of my money in terms of improving the situation. Her Majesty’s Inspectorate, which looked at the way police forces dealt with violence to women and girls, was very persuasive about the hugely patchy approach of police forces.

As far as the Law Commission is concerned, anyone reading its work will see that it is complex and that it did not come to an easy conclusion when it gave a provisional view that it would be helpful to add to the categories in the way suggested. Most notably, it identified the risk that hate crime laws could prove unhelpful in certain contexts such as domestic abuse and sexual offences. It then went on to quote evidence from the Fawcett Society, which argues that all sexual and domestic abuse offences committed by men against women should be understood as inherently misogynistic. There is therefore a risk that sex-based hate crime might disrupt this understanding because it would require juries to seek express evidence of misogyny in these contexts, potentially causing some offences to be non-misogynistic where there is insufficient evidence of this.

I am not qualified to comment on the detail, but it is clear that this is a complex issue, as are the issues of sex and gender. Given that the Law Commission will report by the end of the year, the key thing we want to hear from the Minister is that the Government will take the report seriously and it will not join other Law Commission reports in the long grass.

Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, we are all impatient for the Law Commission report, but I believe it is best to await it before deciding how best to frame any law on hatred towards women. Sex and gender have become conflated in ordinary speech, even in legislation, but they are not the same. While “sex” has a clear meaning in law, as defined in the Equality Act, the term “gender” does not, and is taken to mean social roles or stereotypes associated with someone’s sex, and that is too tenuous, at least at this stage, to be a legal definition.

If the intention of adding “or gender” is to ensure that legislation also covers hate crimes perpetrated towards trans women, it is unclear why the law would not catch a crime directed towards a trans woman on the basis of presumed sex. In addition, crimes directed against someone based on their transgender identity are already covered by hate crimes legislation.

Independent Review of Administrative Law Update

Baroness Ludford Excerpts
Monday 22nd March 2021

(1 year, 3 months ago)

Lords Chamber
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Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, that is a very interesting proposal from my noble and learned friend. Generally, of course, judicial review does not substitute the decision of the court for the decision of the decision-maker, but perhaps that is a matter which I can reflect on and discuss with my noble and learned friend as I consider the responses to the consultation generally.

Baroness Ludford Portrait Baroness Ludford (LD) [V]
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My Lords, the Government appointed a distinguished panel to review the operation of judicial review led by a Conservative former Justice Minister. The panel said that

“disappointment with the outcome of a case … is rarely sufficient reason to legislate more generally”.

It was obviously thinking of Miller 2, the prorogation case. The Government seem dissatisfied with that response. and are now consulting on statutory changes, such as for ouster clauses, which the panel advised against. The Faulks review also points out that

“any legislation would be of limited effect unless changes are also … made to the Human Rights Act.”

Given their reaction to the review of judicial review, will the Government similarly ignore the result of the Gross review of the Human Rights Act if they do not get the answers they want?

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, we are not disappointed with the report from the noble Lord, Lord Faulks, and his team. On the contrary, it is a very good piece of work. We are consulting for the reasons I have already expressed. The panel did not say that ouster clauses should never be used; it said that, when used appropriately, they should not be seen as an affront to the rule of law. We want to consult on whether and how they should be used. The independent review of the Human Rights Act is ongoing. We will consider its results in due course. While very significant reform of judicial review might require changes to the Human Rights Act, the changes we are proposing do not.

Anti-Semitism: University Campus Incidents

Baroness Ludford Excerpts
Thursday 21st January 2021

(1 year, 5 months ago)

Grand Committee
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Baroness Ludford Portrait Baroness Ludford (LD) [V]
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My Lords, I thank the noble Baroness, Lady Deech, for this debate, and the CST, along with the Union of Jewish Students, for preparing this important and distressing report. It is intolerable that students—or, of course, any Jewish person—should be subjected to anti-Semitic abuse. One of the issues highlighted is the flaws and lack of consistency in some universities’ complaints procedures. Some have given strong support, but others have not investigated or adjudicated complaints promptly, thoroughly or fairly. In that context, it is disappointing that only around 40 or 50 of over 130 universities have adopted the full IHRA definition and examples. Only if they do so can they recognise anti-Semitic discrimination, prejudice or abuse based on an appropriate, complete standard that is commonly accepted. I am sorry to see my alma mater, the LSE, missing from the list I saw. What are the results of the Minister’s department’s engagement with universities on adoption of the IHRA definition and best practice complaint procedures? I look forward to hearing his response and I welcome him to the Dispatch Box.