Retained EU Law (Revocation and Reform) Bill

Debate between Baroness McIntosh of Pickering and Baroness Ludford

Report stage
Monday 15th May 2023 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I will be brief. I lend the support of these Benches to the important amendments from the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Anderson of Ipswich. They might seem perhaps a little specialised, but they are extremely important. There might not be any intention to press any of these amendments to a vote, but I do hope that the Government will see their way to taking on board more than they have already in the two amendments from the noble Lord, Lord Callanan.

These amendments are about trying to remove threats to legal certainty and therefore to increase legal certainty, respecting the courts and their ability to run their business efficiently and removing the peril of the court being asked to venture into political and policy matters. We know about the flak to which the courts have been exposed—including, it has to be said, not being defended by the person in government who should have defended them.

It therefore seems perverse that the Bill, as drafted, would increase the likelihood of the courts being exposed to being hanged, drawn and quartered, as we have seen on the front pages of certain newspapers at various times. So there is a desire to get more predictability and certainty into the law, and more discretion for the courts to run themselves as they see fit and not have to do things that would get them into shark-infested waters. So, even though it seems that these important amendments will not be determined by the House today, I hope that the Government will reflect before Third Reading and see the wisdom behind them.

[Baroness McIntosh of Pickering (Con)]

I am sorry to speak out of turn, but I entirely support all the amendments in this group. In particular, I endorse the plea of the noble and learned Lord, Lord Hope, on the status of the Lord Advocate. Could the Minister clarify, either at this opportunity or at a later stage of the Bill, the points that the noble and learned Lord made, because it would not be acceptable for the Lord Advocate to be treated differently from any other law officer in the land?

Nationality and Borders Bill

Debate between Baroness McIntosh of Pickering and Baroness Ludford

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Baroness Ludford (LD)]

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 (Con)]

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.