Illegal Migration Bill

Debate between Baroness Ludford and Lord Coaker

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, I say to the noble Lord, Lord Swire, and the noble and learned Lord, Lord Garnier, that I have for months been calling for more statistics from the Government and for the publication of the impact assessment. They join me in calling on their noble friends on the Front Bench to publish the impact assessment.

I would be delighted if we knew how many people the Government were detaining and removing. The noble and learned Lord, Lord Garnier, made the point that numerous noble Lords have made all the way through: we have no statistics. Clearly, the Government have them and will not tell us them. I suspect that is because they are embarrassed or worried, or because it would set up some sort of mechanism by which they could be judged on whether they have succeeded or failed. We have all said it would be helpful to publish the number of people we are detaining, whom the Government regard as illegal, and the number we are removing. We have not demanded it for a year after the passing of the Bill. That would be helpful, but we are demanding to know now what the assumptions are behind the planning within the Bill.

Perhaps, just to help the noble Lord, Lord Swire, the noble and learned Lord, Lord Garnier, and the rest of us, the Minister could tell us now what assumptions the Government are working towards as to the number of people they expect to detain under the Bill and the number they expect to remove. That would make that part of the amendment from the noble Lord, Lord Swire, unnecessary, and it would help our deliberations.

There is one further thing that would be helpful on the amendment from the noble Lord, Lord Swire. Before we had the cut-off date of 7 March 2023, how many people had failed their asylum application and were at that time waiting to be deported? It would be interesting to know how successful the Government’s policies had been up to that point in assessing whether people needed to be detained.

I particularly wanted to say a couple of things. I will leave Amendment 137; those debates about compatibility with various international conventions are well made, and we will return to them. I am grateful to the noble Baroness, Lady Ludford, for signing and supporting that amendment. I do not want that to be seen as somehow meaning that they are not important. I hope the Minister will respond to the amendment, but the compatibility of the Bill with various international conventions has been debated all the way through Committee and I do not want to repeat those debates now. That is not to be taken to mean that those debates are not important; they are essential and will no doubt be returned to on Report.

I will focus particularly on Amendment 139FB in my name, which relates to our ability to tackle the gangs. There has been a lot of emphasis on victims, the potential number of asylum seekers and so on. These are government statistics. I repeat what I said earlier: the number of convictions for people-smuggling gangs has reduced considerably, has it not? Can the Minister give us an up-to-date figure on the number of smuggling gangs and a helpful comparison? Can he try to do us a favour by comparing with a year that gives a true reflection, rather than picking a year that gives a good percentage outcome? That would be helpful, because it is in all our interests to know exactly what is going on. Can he confirm my figure that over the last 12 months, the criminal smuggling gangs have made £180 million, and can he therefore tell us why so few people in smuggling gangs have been convicted?

As I understand it, there is some debate about whether the number of officers, officials and National Crime Agency staff working on this has gone up or down. Can we have an indication of the number of them involved in tackling this? My amendment deals with the National Crime Agency. Can the Government confirm that it is the law enforcement agency that is leading all this work? What other agencies, both national and international, are working to tackle the criminal gangs? My amendment says that to tackle organised immigration crime across the channel, there is a need to maintain a specific unit. Is a specific unit already in existence, making my amendment unnecessary? If not, would that help?

Essentially Amendment 139FB is a probing amendment to try to understand the current law enforcement activity with respect to tackling this heinous crime, from a national perspective but also an international one. I join the noble Lord, Lord Swire, in demanding from his Government some statistics, please.

[Baroness Ludford (LD)]

I will speak briefly to Amendment 137, which I was pleased to co-sign, as the noble Lord, Lord Coaker, said. The amendment raises some important points in referencing Articles 524 and 763 of the trade and co-operation agreement.

Article 524, in the context of part 3 of the agreement on

“law enforcement and judicial cooperation in criminal matters”,

is predicated on respect for fundamental rights and legal principles, as reflected in the European Convention on Human Rights in particular. That is one of the reasons. One would expect the Government to be very careful about any undermining of the UK’s commitment to the European Convention on Human Rights in case they, for example, undermined this part of the TCA.

Indeed, Article 763, which underpins the whole of the TCA—not just the law enforcement and co-operation part—says that

“the Parties reaffirm their respect for the Universal Declaration of Human Rights and the international human rights treaties to which they are parties”.

That must also cover the ECHR. So, basically, our co-operation with the EU in the trade and co-operation agreement depends on our commitment to the European Convention on Human Rights. So it is not just important in the context of the Bill and generally but it is also a factor in the EU regarding us as playing a good- faith part in the trade and co-operation agreement. Undermining our commitment to the ECHR has to be seen in that context.

We benefit from a data adequacy decision from the European Commission, which means that data can be transferred between the UK and the EU. This can apply in the law enforcement and police co-operation sector, but it is also important to businesses, such as those in the City, those in financial services, those in fintech and others, particularly in the services arena. So there is a connection between respect for human rights and data adequacy decisions and business, because one of the factors that can be considered in the grant of a data adequacy decision—I remember debating this several times when we did the Brexit withdrawal legislation, and indeed I worked on the GDPR when I was an MEP—is the human rights compliance of the partner country, which is the UK in this case.

In fact, we commented at the time that that plays more of a role for a third country than it does within the EU, because questions arise about the human rights compliance of some countries within the EU, and it is finding it difficult to deal with them. Unfortunately or not, the UK is in the position of having less leverage in this respect. Believe me, the European Parliament will have something to say on this subject as well. The data adequacy decision gets reviewed in 2025, so the Government need to be careful that they are not undermining the data adequacy decision by disrespecting human rights.

On the situation in Northern Ireland, the Northern Ireland Human Rights Commission points out:

“The UK Government’s ‘Explainer’ document on Windsor Framework Article 2 acknowledges that its protections apply to everyone who is ‘subject to the law in Northern Ireland’. Asylum-seekers are part of the community, subject to the law in NI and are therefore protected by the Rights, Safeguards and Equality of Opportunity chapter of the Belfast (Good Friday) Agreement. In court proceedings ongoing at the time of writing”—


about four weeks ago—

“the Home Office has not disputed the argument that the protections of the relevant chapter of the Belfast (Good Friday) Agreement extend to asylum-seekers and refugees”.

So that has to be considered in a United Kingdom Bill.

The Northern Ireland Human Rights Commission also points out that, in the explainer on the Windsor Framework, the UK Government have confirmed that

“key rights and equality provisions in the [Belfast (Good Friday)] Agreement are supported by the ECHR.”

So, the ECHR and Article 2 of the Windsor Framework are intimately connected. The Northern Ireland Human Rights Commission, along with the Northern Ireland Equality Commission, have identified several EU asylum directives—reception, procedures, qualification and the Dublin III regulation—as relevant to Article 2 of the Windsor Framework. They conclude:

“Given this analysis, failure to address compliance with Windsor Framework Article 2 in the Human Rights memorandum to the Bill is a matter of concern.”

Illegal Migration Bill

Debate between Baroness Ludford and Lord Coaker

Wednesday 8th March 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, here we go again, as the Government launch yet another Bill to deal with their catastrophic failure on asylum. We have record backlogs, claimants waiting sometimes years for claims to be sorted, children lost, and claimants bundled into hotels with no or little local consultation. Last year, a record 45,000 people crossed the channel on small boats, up from four years ago, as convictions for people smugglers have halved. It is a public policy failure.

Just last year, the Nationality and Borders Act was passed. The Home Secretary said:

“Anyone who arrives illegally will be deemed inadmissible and either returned to the country they arrived from or a safe country.”


Can the Minister update us on how that is going? How can it work with no return agreements and the shocking Rwanda plan, as it should be, stuck in the courts? Last year’s Act led to 18,000 people deemed inadmissible because they travelled through safe countries. Without the return agreements, which the Minister never mentioned, can he confirm that just 21 were returned—or if he prefers, 0.1%. The other 99.9% were placed in shocking hotels, or similar, at the cost of £500 million and more boats arriving. It is chaos—chaos with shocking human consequences and potential rises in community tensions.

What is different this time? Where are the return agreements? Where are all those to be detained for 28 days going to be housed? What happens after the 28 days? Let us remember, among those people, there will be torture victims, those fleeing war and persecution, Afghan interpreters and families with children. It is chaos, unworkable, but it gets the Government the cheap headlines they crave—even if it means potentially excluding victims of modern slavery or trafficking. Where are the safe and legal routes that many in this Chamber have been asking for? To take one example, what route exists under the existing rules or under this Bill for Afghan interpreters who fled Afghanistan, and were told by the Government to flee Afghanistan, to avoid capture by the Taliban?

Let us put in place an alternative, one that will no doubt be mocked by those seeking sensationalism. This would include: giving asylum caseworkers the support and help they need to speed up the process, rather than criticising them in emails; putting in place proper new agreements with France, Europe and others, including returns; properly controlled and managed legal routes, such as family reunion and reform of resettlement. What is wrong with competent and sensible public authority? What about the plan to tackle gangs by establishing a cross-border policing unit—why has that not happened? Have we got to the point where, as a people smuggler told Sky News yesterday, three-quarters of the smugglers live in the UK? Is that right? What is the figure? What are the Government doing to arrest and prosecute them?

All of this is being done in a Bill that drives a coach and horses through international law, leading to a potential withdrawal from the ECHR. What does the Minister think one of its architects, Winston Churchill, would think of that? How does the Minister justify the unbelievable statement about the ECHR on the front of the Bill? I have never read something like this on a Bill before:

“I am unable to make a statement that, in my view, the provisions of the Illegal Migration Bill are compatible with the Convention rights, but the Government nevertheless wishes the House to proceed with the Bill.”


That is written on the front of the Bill. It is unbelievable that a British Government should put on the front of a Bill that they should ignore international law and the legal system in this country. This is an absolutely disgraceful disregard for international law.

What will other countries think of us? Are we as a country not about upholding the principle of respecting international law? Is that not one of the things that we campaign for across the world? Of course, we have a difficult issue to deal with around small boats, and we have outlined, as I just did, some sensible ways forward. But it cannot be right to seek to solve this issue through strategies rather than solutions, or by gimmicks, quick headlines and recycling harmful rhetoric. The Bill is not a solution and is not in the finest traditions of our country, which we are all so proud of. It risks making the chaos worse. Is it not true that the only people to blame for that will be the Government themselves, but the people who will suffer are those seeking asylum from horror and tyranny?

[Baroness Ludford (LD)]

My Lords, I thank the Minister for repeating the Statement. I came across an article that said:

“The longer the queue, the worse the administrative confusion, the greater the incentive is for racketeers to target their efforts on Britain. There is a direct link between Government incompetence in managing asylum cases and the surge in applications to stay here.”


This was written in 2000 by William Hague, then the leader of the Conservative Party and now of course the noble Lord, Lord Hague of Richmond. He was criticising the then Labour Government, but, in the ministerial letter we received, referring to plans to

“clear the legacy initial decision asylum backlog by the end of 2023”,

there was a complete failure to acknowledge that this legacy was created by a Tory-run Home Office, which has never got a grip over the last 13 years. Nearly 100,000 people have been waiting for a decision on their asylum claim for over six months—that is four times the number in 2019. We need a minimum service level in the Home Office.

We all want to see an end to dangerous channel crossings, but the Bill and the hullabaloo surrounding it are just more of the same gimmicky gesture politics, not the practical and sustainable solution that is actually needed. The Bill is not only unworkable but illegal and immoral. It treats people as criminals simply for seeking refuge. In the article I quoted from, the noble Lord, Lord Hague, said:

“We believe Britain has a moral as well as a legal duty to welcome here people who are fleeing for their lives.”


That “we” was the Conservative Party 23 years ago. No wonder that even some Tory MPs are now upset at the xenophobic and dehumanising rhetoric and intentions to breach the refugee convention and the European Convention on Human Rights.

In her enthusiasm to make the demonisation of refugees an election selling point, the Home Secretary appears to have broken the Ministerial Code: a fundraising email sent in her name to Conservative Party supporters disgracefully tarred civil servants as part of an “activist blob” that has “blocked” the Government from trying to stop the small boat crossings.

Why is the Bill needed, when the ink is barely dry on the Nationality and Borders Act 2022, which was supposed to be the magic solution that would stop the boats? This plan will punish the victims of persecution and human trafficking, but it will do nothing to stop the evil criminal gangs who profit from these small boat crossings. Not only are the majority of men, women and children who cross the channel doing so because they are desperate to escape war, conflict and persecution; most of them are in fact granted the protection they need. Four out of 10 people arriving on boats last year were from just five countries, with an asylum grant rate of over 80%—the Home Office recently decided to fast-track applications from a similar list of countries. How does the plan to deem inadmissible any claims from people who arrive on small boats from countries such as Afghanistan or Syria accord with these facts?

The only way to stop these dangerous crossings is to create safe and legal routes. The Government talk about such routes, but where and what are they? Will the Government commit to granting humanitarian visas to people needing to flee? We are told that the Bill will introduce an annual cap on the number of refugees whom the UK will accept, but how would that work? If the next person arriving is escaping the terrible cruelty of the Taliban or the appalling regime in Iran, will they just be refused? The number of family reunion visas issued in the year to September last year was more than a third down on 2019, so safe routes are in fact being constricted. Will the Minister assure me that the Government will commit to supporting my Refugees (Family Reunion) Bill, which recently passed this House, when it progresses through the other place?

Instead of locking up asylum seekers or forcing them to stay in hotels, will the Government commit to ending their absurd ban on asylum seekers working after they have been waiting months for their claims to be processed? If so, they could pay their way.

We are expected to proceed with a Bill of which the Government themselves say there is more than a 50% chance that it is incompatible with the ECHR. Quite how they can say they

“remain confident that this Bill is compatible with international law”,

when simultaneously believing that it is only 50% likely to be, is a mystery. How can a law actually designed to circumvent human rights possibly be fit for purpose? Lastly, speaking of human rights, can I ask for a list of countries to which people would not be returned?

National Security Bill

Debate between Baroness Ludford and Lord Coaker

Committee stage
Wednesday 21st December 2022 Lords Chamber

[Lord Coaker (Lab)]

My Lords, my noble friend Lord Hacking must make sure that he is here on the Wednesday we come back; I am sure that we will start with the debate he referred to, which will probably be quite a significant and long one. Just to give him time and to get my retaliation in first, I tell the Minister that I have read the relevant bit of Schedule 6—paragraph 1(2)—which he will say makes my amendment irrelevant because it is covered there. I know that; I have put this down so that we can have a debate on it.

In moving my Amendment 60, I recognise the very important issues raised by Amendments 61 and 63 from the noble Baroness, Lady Ludford. We are returning to Schedule 6, which deals with detention under Clause 25, “Arrest without warrant”, which is a significant power. We accept that there is clearly a need for individuals to be detained under the offences in the Bill, but I have a number of questions to seek clarification from the Minister—hence my Amendment 60.

Committee allows us to look in detail at various sections and parts of the Bill and seek clarification on what the Government mean by certain phrases. That is of particular interest because many people read our deliberations and they are often used in the courts to try to inform judgments. I hope the Government will bear with me if some of my questions appear to have obvious answers.

Clause 25(1) states:

“A constable may arrest without a warrant”.

Is that only a constable of a police force, not any other organisation? Is it all UK police forces? Does it include other forces, for example a constable of the MoD police, the British Transport Police or the Civil Nuclear Constabulary? Are there any special arrangements for Northern Ireland, given that the Bill says that any officer of any police force can use this power in any part of the United Kingdom? If they are not in uniform, do they have to produce their warrant to show who they are?

In Clause 25(6), the original detention of 48 hours can be extended by a review officer. How many times can this be reviewed and for how long can someone be detained? Is there a maximum limit or can they be renewed on multiple occasions? At what point would there be any judicial involvement in the process to agree any continuing detention beyond the original 48 hours?

Can the Minister confirm that my Amendment 60 is not needed, as I said at the beginning, because paragraph 1(2) of Schedule 6 says that detention has to be in

“land or a building in the United Kingdom which is owned … by a police force.”

Does this include all types of police force? Would it include the buildings and lands of the British Transport Police, the Civil Nuclear Constabulary, the MoD police, et cetera?

Can the Minister also confirm on the record that no person arrested without warrant under Clause 25 can be held in any UK buildings or land in any security service building outside the UK, any Armed Forces facility or land outside the UK, or any other such facility? There is a need for some clarification here, in the sense that UK military bases are sometimes referred to as “sovereign territory”. Does that imply that they are in the UK and could therefore be used, even though they are not within what one would normally assume to be the borders of the United Kingdom?

Can the Minister confirm or otherwise whether Clause 25 can be used outside of the UK to arrest a UK national who is believed to be involved in a foreign power threat activity within the United Kingdom? If so, how does that actually work? If a UK national is arrested abroad because of the threat they have posed through an activity within the United Kingdom, how is that person then detained and brought back, or can the offence not be used against a UK national who is abroad even if they are believed to have committed an offence when they were within the United Kingdom?

I will leave the noble Baroness, Lady Ludford, to speak to her amendments, but they address the idea that, in a democracy, the proper treatment of detainees must not only be done but be seen to be done. Which body or independent reviewer is or will be responsible for oversight of the operation of Clause 25 and Schedule 6? As I have said, these Benches accept the need for such arrangements, but clarity of purpose and transparency are essential when dealing with issues of arrest and detention. Our democratic traditions demand that we do so in this area, as much as anywhere else. With that, I beg to move.

[Baroness Ludford (LD)]

My Lords, I thank the noble Lord, Lord Coaker, for introducing this group. As he noted, I will speak to Amendments 61 and 63 in my name, which are inspired, as usual, by the report of the Joint Committee on Human Rights. My amendments relate to Schedule 6, which applies the conditions for arrest and detention without warrant under Clause 25.

We are concerned that some of the protections in the schedule are not adequate to guard against a descent into somewhat arbitrary detention. The initial period of detention permitted is 48 hours, and there is supposed to be a review at least every 12 hours. There can then be a judicial warrant for up to seven days after the initial arrest, subject to a further extension up to a total of 14 days. Although that judicial part has certain guarantees, there are still elements which cause us concern, including when the detainee and their legal representative may be excluded from parts of the hearing, or an application may be made to withhold certain information relied upon by the authorities. To be denied sufficient information to counter any claims made against them or to be excluded from the hearing are serious moves. Obviously, these themes have been encountered before in anti-terrorism legislation, but we are concerned, for instance, that the use of detention could be based on undisclosed or closed material where the concern relates solely to proceeds of crime.

My Amendment 61 is about where there could be a power to delay allowing the detainee to have a named person—a family member or a friend, for instance—informed of their detention and having the right to consult a solicitor, including where the officer has reasonable grounds for believing that the person has benefited from criminal conduct or where the recovery of property of value would be hindered by allowing access to a solicitor or notification to a named person. These are very serious impediments to accessing basic rights for a person detained without charge. The JCHR feels that, while these restrictions may be proportionate if necessary for imperative reasons of national security, such as to prevent immediate harm to persons, the case is less compelling where the objective is solely asset recovery. Therefore, Amendment 61 aims to delete paragraphs 9(4) and 9(5)—I hope they are still paragraphs 9(4) and 9(5)—of what is now Schedule 6; the moving story which has tripped up other noble Lords also applies to schedule renumbering.

Nationality and Borders Bill

Debate between Baroness Ludford and Lord Coaker

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I very much thank the Minister, who has taken a very welcome personal interest in this matter, which is very encouraging. The government amendments are interesting and represent some progress, but they are unspecific for EEA citizens, and there is still that discretion, not certainty, that the Secretary of State “may” but not “must” do this.

As I said in Committee, I was grateful for the concession, announced by the Minister and which she has just talked about, to the effect that the Government would

“amend the Immigration Rules … to disapply any requirement for a Lounes dual national”—

this area is littered with technical terminology—

“to have held CSI in order to sponsor applications by relevant family members”

for settlement. I would be very grateful, as we asked in Committee, to know whether there is any further knowledge of what progress there is on that change to the Immigration Rules.

So far, so good—but on the other two arms of my amendment, on registration of children as British citizens and naturalisation as British for an EEA settled person, both without looking at past CSI history, as my amendment asked for, the Minister said in Committee that

“it would not be right to single out EEA nationals”,

and she has repeated that. We are slightly in the same territory as we were on the Chagos amendments, whereby the Government say that they cannot do something specifically for this group. The Minister also said in Committee that

“it would not be right to treat certain nationalities differently”—[Official Report, 1/2/22; col. 794-95]

and she is maintaining this approach.

However, EEA nationals are being treated differently. They have resided previously in this country, often for a long time; a large chunk of an international treaty, the withdrawal agreement, is devoted to them and to their counterparts, British citizens in the EU, and legislation specifically covering them; and there are various arrangements for monitoring and supervising how they are treated. So they are a special case. I would just mention that some children who should have been born British were not, and now have to be registered at a cost of more than £1,000 because of the specifics of the situation of EEA nationals.

After the meeting of the UK-EU joint committee last week—the committee on the withdrawal agreement—Vice-President Šefčovič recalled that

“it was a commitment from both of us that we will do our utmost for the UK nationals in the EU and the EU citizens staying in the UK.”

An EU official was reported as saying that the Commission would consider whether to launch consultations on citizens’ rights, and could ultimately trigger an arbitration process. I am not saying that those remarks were targeted at this specific problem, but that reminds us that there is an oversight mechanism for the fate of EEA citizens.

The CSI issue affects only EEA citizens, nobody else, so removing it entirely from being a virus—I called it “snakes and ladders”—in our immigration regime, would simply bring EEA citizens into line with all other migrants, who do not have a CSI problem. When Prime Minister, Theresa May said:

“The requirement for comprehensive sickness insurance is an EU requirement, and as long as we are members of the EU, it will continue to be there. Once we leave, we can indeed remove it”.—[Official Report, Commons, 26/6/2017; col. 315.]


It is true that the Government removed it for applicants for settled status but, as I hope I have explained through the passage of this Bill, the problem is that it pops up later. You do not get rid of it; that is why I call it a virus. You do not get rid of it—it sort of comes back.

What is not to like about removing red tape? I suggest that while the new government amendments represent some progress—again, I thank the Minister—they still rest on discretion and do not treat EEA citizens on the fair, legally secure basis that I believe they deserve under the withdrawal agreement. I hope that the Government can do more and ward off any possible action from the European Commission and enforce a slightly more secure basis.

If I cannot get what I really want—acceptance of my amendment—I ask the Minister to confirm at least that, when implemented, the guidance will be updated to always state that the Secretary of State will always exercise her discretion in favour of applicants by not inquiring as to whether they had CSI and by treating self-sufficient persons, students and their family members as not having breached immigration laws. That should be in guidance as a firm commitment. Otherwise, I would like to hear the Minister further.

[Lord Coaker (Lab)]

My Lords, we support much of what the noble Baroness, Lady Ludford, has just said and some of the questions she has put forward. No doubt, the Minister will respond to those questions. It has to be said that the Minister has come forward with some amendments that do improve the situation.

Can I just emphasise the important points the Minister made and clarify, in the light of the questions from the noble Baroness, Lady Ludford, that she said it would apply to all residents, not just EU residents? That is an important point that the noble Baroness, Lady Ludford, made, and the House needs further clarification on what “all”—not to be pedantic—actually means in these circumstances for clarity of legislation.

Having welcomed the step forward the Minister has clearly made, I think that what “exceptional” means is also important—so that the Secretary of State will not use the power to prevent somebody without CSI gaining citizenship other than in exceptional circumstances. The noble Baroness, Lady Ludford, again, is right to ask for greater clarity about how “exceptional circumstances” will be defined and whether there will actually be guidance that any future Home Secretary will have to take into account in determining whether leave to remain should be changed to a full citizenship status in the particular circumstances with which this group of amendments is dealing.

I thank the Minister for coming forward with those amendments and trying to meet many of the concerns that were raised in Committee and before. I look forward, with the noble Baroness, Lady Ludford, I am sure, to the answers to the important questions that have been raised, notwithstanding the amendments before us this afternoon.

[Baroness Williams of Trafford (Con)]

I thank both noble Lords for the points they have just made. I did refer to guidance in the points I was making in introducing. Yes, the guidance will make things clear.

In terms of “all”, “all” means all nationalities; the provisions will apply to all nationalities. I know the noble Baroness says this is a particular EU problem, but we are trying to make provisions that apply to all countries.

In terms of that point about “may” and “must”, “may” rather than “must” reserves the “may” for the most exceptional cases where it would not be appropriate to take that more generous approach. The provisions will be applicable to the vast majority of applicants, apart from those “may” applicants where a generous approach would not be appropriate—for example, criminality. I hope that explains it to the noble Baroness.

Nationality and Borders Bill

Debate between Baroness Ludford and Lord Coaker

Lords Hansard - Part 2 & Committee stage
Thursday 10th February 2022 Lords Chamber

[Lord Coaker (Lab)]

My Lords, my Amendments 172B and Amendment 174A relate to Clause 67.

I say at the outset that I do not want to reopen a debate about Brexit, but I do want to reopen a debate about the practical implications of the UK being outside the EU and how it relates to the protection of children and those who are victims of slavery and trafficking.

The Government actively chose to opt into the trafficking directive in 2011, stating that it would send a powerful message to traffickers. The modern slavery strategy of 2014 stated that opting in showed

“our commitment to working with other countries in Europe to drive up standards across the continent in tackling trafficking.”

Can the Minister say what has happened to that and how the Government are demonstrating those continuing commitments? Why is Clause 67, on disapplying the directive, necessary? What the Committee would like from the Minister—which may be difficult to do now as he may need to refer to others before coming back to us—is to explain which specific provisions of the Bill the Government consider to be incompatible with the directive? The Government have not given any detail on this. Is it victims’ rights or children’s rights? In other words, what difference has it made, what was covered and what is not covered? These answers are necessary for us to make a comparison and see whether there are any gaps which we believe would be important to close.

In the Commons, the Minister said that

“the transition period for this measure finished in January, so in effect it has already been disapplied.”—[Official Report, Commons, Nationality and Borders Bill Committee, 2/11/21; col. 547.]

I hesitate to suggest this, but I certainly would not be able to tell noble Lords exactly which bits have been applied, which have been disapplied and whether it makes any difference. Can the Minister provide clarity on this? Are we disapplying it under this Act, or have the Government already decided that it does not apply? In other words, has it just been abandoned?

My amendment does not prevent the disapplication, but simply asks the Government to complete an impact assessment before this part comes into force—including identifying which parts of the Bill are incompatible and, crucially, what impact this would have on the identification and protection of victims of slavery. The Government may have already conducted an impact assessment but if so, I could not find one. If they have, it would be interesting for the Committee to note that. This is particularly important because a Google search finds all sorts of regulations and legislation which have been passed, presumably to protect victims of slavery and trafficking. So, my amendment is a simple probing amendment to ask the Minister what difference the disapplication has made. How do we know it has not made a difference if we have no information about the difference between what there was and what there is?

I do not intend to commence a huge new debate for this Committee, but I want to use this grouping as an opportunity to highlight the issue of internal trafficking and county lines. The Minister will know that large numbers of children are referred to the national referral mechanism. He will also know that 34% of referrals are British citizens. There is a real problem with slavery and trafficking within the UK. Euphemistically, this is called county lines, and we know what that means. This will be the tip of the iceberg. The Government have set up all sorts of initiatives to try to deal with this, but what I am seeking to do is simply to raise the issue of slavery and trafficking of children—British children—within the UK. How big is the problem, what is its extent and what are we doing to get on top of it? People of this country would be shocked at the numbers of British children being trafficked and enslaved. Often, including in the debate we have had on this Bill, much of the discussion has been about people coming into the country—rightly or wrongly—what the numbers are and what the impact of the new provisions will be.

Although this is a probing amendment, it is nevertheless really important. I am pleased to see that the Home Office Minister, the noble Baroness, Lady Williams, is now in her place. Perhaps these are issues that should be debated elsewhere, but county lines and internal trafficking are important issues and the number of British children in slavery is increasing. It is a growing phenomenon that is a great shock to us all, and we need to do more to tackle it. I beg to move.

[Baroness Ludford (LD)]

My Lords, I would like to lend our support from these Benches to both the amendments of the noble Lord, Lord Coaker. The subject of retained EU law is one on which it is easy to go down a rabbit hole. But at least this is being put in primary legislation instead of being done by the stroke of an executive pen, which is what the noble Lord, Lord Frost—who is, well, I had better not say—who used to be the Brexit Minister, appeared to suggest would happen. So, I suppose we should be grateful for small mercies.

The EU trafficking directive is, in a sense, a classic EU directive. It aims to get common standards as a measure of human rights protection, in order to establish robust provisions to prevent and prosecute the crime of trafficking and to protect, assist and support its victims. But also, the point of trying to get similar standards was to facilitate cross-border co-operation between member states’ law enforcement authorities through police co-operation, exchange of information and best practices, and dialogue between police, judicial and other authorities. Sometimes misunderstood, the whole point of EU harmonisation was to enable things to happen better, not least law enforcement.

I too do not want to rerun the issue of Brexit, but it is hard to see how pulling out of the EU trafficking directive is a Brexit opportunity. It is a lost opportunity to co-operate internationally across European borders with Europol on major crime. I am afraid that major criminals are one of the beneficiaries of Brexit.

It is a great pity that the part of the TCA on security is so thin. Things like the EU trafficking directive deserve a place in it. You can withdraw unilaterally, but that means you do not get the reciprocity of other police forces co-operating when you have criminal perpetrators who come from all over. Of course, we know this is an international crime. The EU directive also enables the pursuit of action in non-EU countries, such as raising awareness, reducing vulnerability, supporting and assisting victims, fighting the root causes of trafficking and supporting third countries in developing appropriate anti-trafficking legislation. That is an action that would rebound to the benefit of EU countries and the UK, if we were to stay plugged in to the EU’s directives. So, I do not see that pulling out is other than a lose-lose situation.

On the other amendment from the noble Lord, Lord Coaker, as has been mentioned—I believe this figure comes from Care UK—in 2020, 34% of all potential victims of modern slavery referred to the NRM were UK nationals. So, the noble Lord, Lord Coaker, is right to focus on that and on the many children involved in county lines drug dealing. We fully support the call for a report on these issues.

Nationality and Borders Bill

Debate between Baroness Ludford and Lord Coaker

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

[Baroness Ludford (LD)]

My Lords, we have been quicker than I anticipated but what my noble friend said is true; I must admit that I am starving.

I will speak to Amendments 171 and 172 from the JCHR, in the name of the noble Lord, Lord Dubs. They aim to remove the worst of Clause 64. Leave to remain is important for victims who are vulnerable to destitution and further exploitation without welfare benefits and other entitlements but, according to the anti-slavery commissioner, the number of victims being granted discretionary leave is very low. In 2015, it was 123. In 2019, it was 70. In the first three months of 2020, it was only eight; we do not have statistics for the whole of 2020-21.

Being granted leave can improve mental health by offering stability and thus a chance of recovery, but the equivalent reference to assistance and support in the Modern Slavery Act reads “physical or psychological harm”; that includes social harm. This Bill would put the law out of line with that and raise real doubts about compatibility with Article 14 of ECAT, which uses the phrase

“necessary owing to their personal situation”.

That is wider than what is in Clause 64(2)(a), which is why I commend Amendment 171 to the Committee. I was pleased to hear the noble Lord, Lord Morrow, refer to the JCHR’s report; he also mentioned the importance of family relationships.

Amendment 172 aims to rectify the omission from Clause 64 of any consideration of the best interests of the child so as to make it compatible with ECAT and the UN Convention on the Rights of the Child. I seem to have mixed up my notes; I am sorry about that because I will now go back to Amendment 171.

In a case last year, the High Court held that refusing to grant discretionary leave while a slavery victim’s asylum application was being processed violated Article 14 of the European Convention on Action against Trafficking. It appears that, before amendments were made in the other place, Clause 64(2)(a) included a reference to the victim’s social well-being as well as their physical and mental health. However, it was removed on Report. Can the Minister explain why? Would the Government like to rectify this omission in the Bill regarding personal, situational and social harm so as to make me, the noble Lord, Lord Dubs, and the JCHR very happy?

[Lord Coaker (Lab)]

My Lords, in the interests of time, let me just say respectfully to the noble Lord, Lord McColl, whose amendments I have signed, that I very much support him and the arguments and points that he made so well. We look forward to the Minister’s response. I pay tribute to the doughty work the noble Lord has done over a number of years to try to move the Government in what many of us regard as a simple and sensible way forward. Let us hope.

I shall speak to my Amendment 171AA. Clause 64 provides for limited leave to remain

“if the Secretary of State considers it is necessary for the purpose of (a) assisting the person in their recovery from any physical or psychological harm … (b) enabling the person to seek compensation”—

unless this can be done outside the UK

“or (c) enabling the person to co-operate”

with law enforcement. The standard, however, does not meet the UK’s obligation to children under the Council of Europe’s Convention on Action against Trafficking. Article 14.2 of ECAT specifies that in the case of children, residence permits

“shall be issued in accordance with the best interests of the child.”

Paragraph 186 of the Explanatory Report to ECAT explains that

“the child’s best interests take precedence”.

Amendment 171AA, which is a probing amendment, simply asks why the Government cannot include leave to remain where children are protected and where it is in the best interest of the child.

Nationality and Borders Bill

Debate between Baroness Ludford and Lord Coaker

Lords Hansard - Part 1 & Committee stage
Thursday 3rd February 2022 Lords Chamber

[Baroness Ludford (LD)]

Can I intervene on an intervention? What is wrong if those people are allowed to work? If it is then determined that they have no right to stay, they would then have to leave—but, in the meantime, they are supporting themselves, perhaps using their skills and contributing tax. If they are then found not to have a legal claim to stay, so be it. I cannot see what the harm is in the meantime.

[Lord Coaker (Lab)]

I say to the noble Lord, Lord Green, that, at the end of the day, of course you want to speed the system up. No one does not want to speed up the asylum application process—to say that would be ridiculous, because of course everyone does. What I am saying is that, as the noble Baroness, Lady Ludford, has just said, at the same time, for the purposes of community cohesion and all the other things that we have heard, allowing asylum seekers to work while their application is being processed is actually a sensible thing to do. But the Government will not publish the evidence for why that is a pull factor, when the policy has been in place since 2001 or 2002 or whatever and has not made any significant difference at all. So all sorts of people and organisations support the right to work, which seems a sensible and reasonable thing to do.

I will finish by saying one simple policy to the Minister. I like to see people off benefits; I do not want to see people languishing on benefits. I thought that was a Conservative Government policy. One of the ways of doing that is allowing people to work: it aids community cohesion and is good for the individuals concerned. I simply do not understand why the Government are turning their face against what is a sensible policy initiative that would do a lot for community cohesion.