Safety of Rwanda (Asylum and Immigration) Bill

Lord Alton of Liverpool Excerpts

Report stage
Wednesday 6th March 2024 Lords Chamber

[Lord Jackson of Peterborough (Con)]

However much the noble Baroness heckles from a sedentary position, I will not sit down and I will finish my speech. Rule 39 interim measures, as we learned in Committee, were not in any meaningful sense court rulings per se and, more specifically, great British statesmen and jurists such as David Maxwell Fyfe, who has been quoted, and Winston Churchill never signed up to the court taking powers upon itself to make binding injunctions. This is at the very heart of these amendments. Indeed, it was debated and specifically rejected in terms. It is only since 2005, when activist judges were acting in the case of Mamatkulov and Askarov v Turkey, that the court has given itself a power ultra vires to the original convention—an important point enunciated previously by, among others, the noble Lord, Lord Faulks, the noble and learned Lord, Lord Woolf, and my noble friend Lord Sandhurst.

The clause that amendments today seek to strike down, eviscerate and render otiose is not an example of arbitrary power but a specific power for this Bill and a set of unprecedented geopolitical and economic circumstances: mass migration. It is not a blanket disregard but a specific power. In summary, Rule 39 rules were never part of the European convention or constitution and there is no evidence, other than the hyperbole in this Chamber, that the UK not being bound by these interim measures undermines our overall compliance with international law and our international obligations, responsibilities or undertakings. The irony of these amendments is that they lock in the UK to adherence to a regime that even the court itself accepts is suboptimal and needs urgent reform. These amendments offer a carte blanche to a broken system.

The court itself does not work in its efficacy and the power to produce a desired result, with 48% of leading judgments being unaltered and not acted upon in the past 10 years across all 46 members of the convention. We have a failing, politicised, secret and unreformed court that some noble Lords wish to legislate to usurp the sovereignty of our Parliament. For these and other reasons, I ask your Lordships to resist these amendments because they are not only consequential but dangerous.

[Lord Alton of Liverpool (CB)]

My Lords, I will be brief. I follow my noble and learned friend Lord Hope of Craighead and the noble Baroness, Lady Chakrabarti, in supporting these amendments. I simply say to the noble Lord, Lord Jackson, that yesterday was the 78th anniversary of Winston Churchill’s famous speech in Missouri; it was entitled Sinews of Peace and it dealt with issues such as the Iron Curtain coming down across the Europe, and why Winston Churchill believed we needed a convention on human rights and supported the creation of the Council of Europe as the best buttress—alliances based on the rule of law—to preserve the peace of Europe and the world.

In the troubled times in which we live—the noble Baroness, Lady Chakrabarti, referred to the debate on these things in your Lordships’ House yesterday—the upholding of the rule of law, especially in the face of all that Putin’s Russia is doing in Ukraine, is paramount—

[Lord Jackson of Peterborough (Con)]

The noble Lord has a proud and long-standing record of defending human and civil rights, which we all support and congratulate him on. However, does he not agree that a system in which you have an unnamed foreign judge in an international court imposing a late-night judgment, and which allows the UK no opportunity to give its own evidence or respond, or understand the evidence against it, is surely not an example of due process or, more importantly, the rule of law?

[Lord Alton of Liverpool (CB)]

I disagree with the noble Lord; the amendments are about interim measures. The Joint Select Committee on Human Rights, on which I serve, took evidence on this issue and I want to refer to that for a moment. Having heard the evidence, these were the conclusions of a committee of the sovereign British Parliament. In paragraph 105, we said:

“We recognise that there are differences of opinion over whether or not interim measures ought to be binding on the United Kingdom. However, as a matter of international law, they are binding. Failing to comply with interim measures directed at the UK would amount to a violation of the European Convention on Human Rights”.


On Clause 5, we said that the Bill

“contemplates a Minister choosing not to comply with an interim measure and thus violating the UK’s international human rights obligations. It also prevents the domestic courts taking into account what may be a relevant factor for any decision whether or not an individual should be removed to Rwanda. This is not consistent with a commitment to complying with the UK’s obligations under the ECHR”.

That was the committee’s considered, majority view; it is not a view that has been responded to by the Government. Here I ask the noble and learned Lord, Lord Stewart, or the noble Lord, Lord Sharpe of Epsom, when they come to reply, to go back to the Committee stage of this Bill, where they gave an assurance that, before we went any further, Parliament would be told the response to the findings of the Joint Committee on Human Rights. As recently as Monday, I was told when I intervened on this point that there would be a response for today; I would like to know when it is going to be forthcoming.

It brings our Parliament into disrepute when we set up Joint Committees and say we will consider issues of this kind in great detail, and when reports have been made available to the Government, but no response has been forthcoming before detailed consideration of that legislation. Here we are, at the Report stage of a Bill that has gone all the way through the House of Commons, has almost completed its passage in your Lordships’ House, and we still have no proper response. When the noble Lord, Lord Coaker, defended, as he did earlier, the integrity and the nature of our Select Committee, I was with him, and not just because, like him, I have particular admiration for the chairs of Select Committees. The honourable Joanna Cherry is no exception in this respect. She is an admirable chair of that committee; she is not a partisan—ask members of the Scottish National Party and they will tell you that she is a very independent-minded lady who has considerable experience as a KC in the law, so chairs are not to be dismissed. These committees of your Lordships’ House should be taken far more seriously. Not to do so is a discourtesy to Parliament and to the kind of arguments that my noble and learned friend has put forward, and it is why, even if these amendments are not voted on today, the principles that underline them should be supported.

[Lord Faulks (Non-Afl)]

My Lords, I promise I will be brief. First, there appears to be agreement that there was not total agreement on the position of international law. Noble Lords will remember the speech of the noble and learned Lord, Lord Hoffman, referring to the article in Policy Exchange. This is not the time to repeat the arguments, one way or another.

It was also agreed that the procedure adopted by the European Court of Human Rights was sub-optimal and there is room for improvement. Improvement may come along the line in due course; we wait to see, and there are some hopeful signs. However, the current position is that it is not a satisfactory procedure.

We then come down to the power. It is important to stress that the Minister has a power, not a duty, which he or she can exercise to ignore the ruling. The Minister does not have to ignore the ruling, and no doubt they will look carefully at the reasons given. Amendment 37 suggests that the Minister will consult the Attorney-General, who I am glad to see sitting in her place beneath the Throne today. I imagine that in a normal course of events, a Minister taking a decision of that gravity would consult the Attorney-General. However, the fact that there is a slender basis for the jurisdiction, that the interim procedure is unsatisfactory, and that there is a power, seem to me to hedge around this provision with appropriate safeguards.

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[Lord Stewart of Dirleton (Con)]

Oh, she is. Well, while she did not press the point again, there was none the less a Green-wedge approach, which included my noble friend Lord Deben, attacking the stance of the Opposition Front Bench. Noble Lords opposite are old enough and ugly enough to defend themselves, and the noble Lord, Lord Ponsonby, did so. On the aspects of my noble friend’s submission that attacked the Government, I say to him that his point is misguided. Of course, the French Government are not the European Union; they are acting in this context as a sovereign country and not as a member of the EU.

As I said, “serious and irreversible harm” is broadly the same test that the Supreme Court applies. The noble and learned Lord, Lord Hope of Craighead, went on to raise a matter in relation to the Constitutional Reform Act. This Bill takes the same approach adopted in Section 55 of the Illegal Migration Act; the Constitutional Reform Act is not referenced in the Illegal Migration Act. Under both provisions, it is for a Minister of the Crown alone, and not a court, to decide whether to comply with an interim measure. That reflects the orthodox position that international obligations act on the Government, rather than having effect on the domestic plane. It does not constitute an attack on judicial independence. There is no implied reform of Section 3 of the 2005 Act, which makes provision for the upholding of judicial independence. This provision remains intact and it is not necessary for legislation that does not bind judicial decision-making to spell that out. The judiciary’s independence is a fundamental principle of our constitution, as I think all noble Lords across the House will agree. The Government are committed to enabling judicial decisions to be made independently and impartially, whether domestically or in relevant international courts and tribunals.

I apologise to the noble Lord, Lord Anderson of Ipswich, and gratefully acknowledge his courtesy in approaching me to chase up the correspondence to which he referred the House. I apologise that the Home Office carrier pigeon failed to reach Ipswich before today. I have a copy of the letter that he sought and, with his leave, and that of the House, I will read the relevant provision.

[Lord Alton of Liverpool (CB)]

My Lords, before the Minister leaves that point about carrier pigeons, can he say when the response from the Government to the Joint Committee’s report on this Bill will be forthcoming, given that on Monday we were told that it would be here for the proceedings today?

[Lord Stewart of Dirleton (Con)]

My Lords, the answer to the noble Lord’s question is “imminently”.

Returning to the correspondence with the noble Lord, Lord Anderson, I quote from that letter that bears my signature and which I trust that he will see in due course. He asked whether the Government agree that if, in compliance with Clause 5, a Minister decides not to comply with an interim measure, that would place the United Kingdom in breach of its international obligations. Clause 5 provides that it is for a Minister only to decide whether the United Kingdom will comply with an interim measure indicated by the European Court of Human Rights in proceedings relating to the intended removal of a person to the Republic of Rwanda under, or purportedly under, a provision of or made under the Immigration Acts. The Bill is in line with international law. The Government take their international obligations, including under the ECHR, very seriously, and there is nothing in the clause that requires the United Kingdom to breach its international obligations. In any event, it is not correct that a failure to comply with interim measures automatically involves a breach of international law. There are circumstances where non-compliance with an interim measure is not in breach of international law. There follows a list of further addressees whom I hope will receive the letter presently.

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[Lord Coaker (Lab)]

My Lords, I feel a bit of an impostor with this set of amendments, because I think your Lordships might find it a bit down to earth to deal with some facts. I have been very interested in my approach as a pupil barrister, trying to overcome and understand everything that was going on—I have done my best. I apologise to everyone because my Amendments 40 and 41 are trying to get some facts from the Government about how the Rwanda treaty will operate or not. In Committee the Minister failed to give us many of the various statistics, so I wonder whether we are now in a position where we can get some of the facts around this. The deliberations we have had have been so important for months during which, it seems to me, the Government have become obsessed with Rwanda. Clearly, with respect to various comments that have been made and the point made by the noble and learned Lord, Lord Hope, we will have to see, once the Commons has considered the Bill, what we may wish to consider again in your Lordships’ House.

I point out that in yesterday’s Daily Telegraph, the Home Secretary wrote that he would consider amendments from your Lordships’ House, so I thank the noble and learned Lord, Lord Stewart, and the noble Lord, Lord Sharpe, because they got a massive concession from the Home Secretary. As the noble Lord, Lord Deben, pointed out, that is not really sufficient but it is a change from when the Home Secretary was making a blanket statement that under no circumstances would he consider anything that your Lordships were considering. At least we have gone from a blanket refusal to consider anything to a statement in the Daily Telegraph—I presume it was well sourced since it was a quote; that is not always the case but often is—that the Home Secretary would consider it.

The noble Lord, Lord Deben, said that this is not about killing the Bill and, although we may disagree over the extent to which we push this, I think the constitutional proprieties of this place needs restating again. As much as we accept that, as His Majesty’s Opposition, we will not block the Bill, the constitutional quid pro quo is that the Government in the House of Commons, through their elected mandate, accept that we have a right to demand that they think again and revise legislation in view of what is said here. We are not just a talking shop or a Chamber that says what we think for the fun of it: we make serious points about serious legislation that impacts on millions of people in this country and hundreds of millions across the word. A Government should respect that and listen to what has been said, even if, in the end, they reject much of it.

Every Government I have ever been part of or known, whether Conservative, Labour or coalition, have always considered what the House of Lords has said. At times they have said that although we cannot agree with that particular amendment, we will come forward with one of our own that seeks to at least address some of the problems that the Opposition and others have brought forward. That is no doubt the frustration that the noble Baroness, Lady Jones, was articulating to me, and what the noble Lord, Lord Deben, was doing in quite rightly challenging me. We are seeking to challenge the Government to respect the constitutional position of this House. They play with the constitution at their peril; without a written constitution, those unwritten rules and conventions are crucial. I am sorry to spend a couple of minutes repeating that argument from the Dispatch Box—I hope the Prime Minister and others will hear it—but it is of fundamental importance. Without that, people ask what the point is and say that maybe we should take things further than we should.

[Lord Alton of Liverpool (CB)]

Before the noble Lord leaves that point, will he also underline, yet again, the importance, within our constitutional proprieties and parliamentary process, of the place of Select Committees? Neither the Constitution Committee nor the Joint Committee on Human Rights has had a response on this Bill. How on earth can we consider legislation to any serious degree if, when committees established by Parliament look in detail at legislation, the Government then rush the legislation through pell-mell without any consideration to what those committees have found?

[Lord Coaker (Lab)]

The noble Lord, Lord Alton, makes the point for himself, and I absolutely support what he has just said.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Alton of Liverpool Excerpts

Committee stage
Wednesday 14th February 2024 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, no one could disagree with a word of that. I of course support the amendment from the noble Lord, Lord Browne. It makes me ashamed every time I see stories such as those that he has related. I support the amendments in the name of my noble friend—whatever persona he speaks in—and have added my name to the noble and learned Baroness’s amendment, which is of course about victims of trafficking and modern slavery.

As my noble friend Lady Brinton said, we will come next week to the position of children, which will include the question of age assessment. I hope that somebody in that debate will draw attention to the Government’s references to the young men who are really men, not children, when they come across the channel. I am sure that other noble Lords saw on our television screens the amazing darts player Luke Littler. He looked considerably more than a child—he looked about 35, in fact. The noble Lord, Lord Horam, said that the amendments from the noble and learned Baroness, Lady Butler-Sloss, drive a coach and horses through the Bill. That is an interesting choice of words; they were the words that Theresa May used about the impact of the recent migration, immigration and asylum Bills.

The noble Lord also criticised the word “might”—that people “might” be in this position. Well, that is because we have a process, which is referred to in the amendment: the national referral mechanism. That is our mechanism for assessing claims of having been trafficked or being a victim of modern slavery and so on. It has its problems, particularly in delays, but it is a careful method of assessment that is not replicated in Rwanda. It involves the support of victims of modern slavery and trafficking, which is not available in Rwanda.

I am no less worried than I was when the Rwanda proposal surfaced. Far from tackling these evils, we are expanding the market and opening it up in that country to further trafficking and re-trafficking. It is a country where modern slavery, as has been said, is a good deal more prevalent than it is in the UK. And it is not just a matter of prevalence, it is a matter of culture—something to which the Supreme Court referred. The culture in Rwanda is not to assess whether people are vulnerable in this area. It shows no demonstration of understanding what modern slavery is or how to assess possible victims. If that sounds technical, it is technical in a way, but it is also about what happens to individuals at a human level. We have heard some very powerful speeches supporting that position.

[Lord Alton of Liverpool (CB)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Hamwee. I support Amendment 75, which was moved so powerfully by the noble Lord, Lord Browne of Ladyton, and supported by my noble and gallant friend Lord Stirrup.

While they were speaking, I was struck by one paragraph in the report of the Joint Committee on Human Rights which I referred to briefly in our proceedings on Monday: paragraph 119 on page 33. We referred to Afghanistan, and it was in this context:

“We have observed, however, that other nations may be influenced by the way in which the UK treats its international law obligations. For example, we note that the Prime Minister of Pakistan has already referred to the UK’s Rwanda policy in defence of his country’s decision to expel from Pakistan hundreds of thousands of Afghans who have fled from the Taliban regime”.


In reflecting on that, the committee said at paragraph 120:

“The UK has a reputation for respect for human rights and the rule of law, of which we should be proud. Legislation that seeks to disapply or fails to respect international law risks damaging that reputation and encouraging other states who are less respectful of the international legal order”.

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[Lord Bellingham (Con)]

I share the noble Baroness’s concerns about Rwanda because there are many areas about which we can be highly critical, but if we listened to some of the criticism of Rwanda as a country not only in this Chamber but in the media and elsewhere, we would conclude that it was incredibly backward and dangerous, which it manifestly is not.

On the point that the noble Lord, Lord Kerr, made about Rwandan refugees specifically, Clause 4(1) states—the Minister can probably cover this:

“Section 2 does not prevent … the Secretary of State or an immigration officer from deciding … whether … Rwanda is a safe country”.


I humbly suggest that if there were a Rwandan asylum seeker here claiming asylum, they would be covered by that part of the Bill. I hope that the Minister will be able to reply to those three points.

[Lord Alton of Liverpool (CB)]

I would not want the noble Lord to proceed on the basis of believing that the JCHR, for instance, which I have been privileged to serve on, was critical of Rwanda. It is very much my view, too, that there has been progress made in Rwanda. What I was talking about before was the volatility within the region and how that can impact. Things changed dramatically in Rwanda, of course, leading to 800,000 people dying in the genocide there.

I draw the noble Lord’s attention to what the committee said on page 13. Talking about the Supreme Court, it said:

“Significantly, the Court did not hold that this was due to a lack of good faith on the part of Rwanda but rather ‘its practical ability to fulfil its assurances, at least in the short term, in the light of the present deficiencies of the Rwandan asylum system, the past and continuing practice of refoulement … and the scale of the changes in procedure, understanding and culture which are required’”.


Does the noble Lord agree?

[Lord Bellingham (Con)]

I respect enormously what the noble Lord says. I would just push back slightly. The RPF and Kagame have a huge amount of support. They are running a very strong Government and when that Government sign treaties such as this one, I am confident that they will do their best to uphold their terms. I look forward to carrying on and making concords with the noble Lord, and to what the Minister will say in a moment.

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[Lord Sharpe of Epsom (Con)]

I take the noble Lord’s point, and I deeply regret any errors that were made in regard to these personnel. I certainly hope that the investigations are rigorous, and if there is any suggestion of any malicious refusal, the full force of the law should be brought to bear. Those errors have been identified, partly because of the noble Lord’s campaigning, and I am assured that they have been corrected now. Therefore, the point stands: there are safe and legal routes to this country for personnel in these positions.

[Lord Alton of Liverpool (CB)]

I will reinforce the point that the noble Lord, Lord Browne, has made and I am grateful to the Minister for his patience. The individual cases that I have referred to the Minister have failed to qualify under the ARAP scheme, and yet he, through his own interventions and those of other Ministers, has been able to rectify those issues; there will doubtless be similar cases in the future as well. Should we not at least have a review of how the schemes are running—an open and transparent process—and a review of some of the cases that have already been referred to the Minister, and to the MoD and the Foreign Office, so that we can see how many we are talking about and what is going wrong inside the system that those cases were turned down in the first place?

[Baroness Hamwee (LD)]

My Lords, I am not sure whether I picked up in the Minister’s response that he included the cohort listed in paragraph (b) of the amendment of the noble Lord, Lord Browne; that is, not people who have supported our Armed Forces overseas but

“persons who have been employed by or indirectly contracted to provide services to the United Kingdom Government”.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Alton of Liverpool Excerpts

Committee stage
Monday 12th February 2024 Lords Chamber

In answer to the noble Lord, Lord Howard, with these amendments we are trying to stop the Government forcing us to lie. That is what we are trying to do.

[Lord Alton of Liverpool (CB)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Jones. I had the privilege of serving as a Cross-Bench member of the Joint Committee on Human Rights, which was referred to by the noble Baroness, Lady Chakrabarti, in her remarks. Indeed, she referred to the 50-page report that was finally agreed by a majority in the committee—it is a majority, not a unanimous, report—on 7 February. It was published today, as others have said, and is available in the Printed Paper Office.

In my remarks, I will say something about what the report has to say about safety. Before doing that, I will agree in particular with the tone of many of the contributions that have been made so far on this group of amendments. As always, my noble friend Lord Hannay put his finger on our international obligations, not least among which is the 1951 convention on refugees. It may well be that this is not written in stone and that there should be attempts to try to change and reform this in the climate of today’s demands—I am happy to give way.

[Baroness Ritchie of Downpatrick (Lab)]

I thank the noble Lord, Lord Alton, for giving way. He has just referred to international agreements. Would he agree with me, therefore, that this Bill contravenes international agreements such as the UDHR and also the ECHR? I am reminded of the fact that the provisions of this Bill extend to Northern Ireland. Hence, this provision and this Bill undermine the very basis of the Good Friday agreement.

[Lord Alton of Liverpool (CB)]

I am grateful to the noble Baroness; I was not intending to touch on Northern Ireland, but she is right that this does touch on the Windsor agreement and on our obligations to Northern Ireland, which are separate from those of the rest of the United Kingdom. I commend that section of the report. These are not my opinions; the report does touch on that question.

The noble Baroness also asked about our other obligations. We have many obligations, not just under the refugee convention but under the ECHR, to which she has just referred. The Government on this Bill, as on the Illegal Migration Bill, decline to give a compatibility statement because they cannot say that it will be compatible—although I know Ministers take a contrary view that there is uncertainty around that. However, if there is uncertainty, we must be very careful where we tread.

On the issue of our international reputation, I was very struck by the statement made by the former Prime Minister of Pakistan, which is referred to in the JCHR report. He justified what he was intending to do and has done in sending back 430,000 Afghan refugees to Pakistan. He said it was modelled on what we were seeking to do in the British Parliament. So, even though we know that is casuistry and extreme, nevertheless we can see where this argument can lead and the way in which it be used. So, yes, as the noble Lord, Lord Hannay, said, our international reputation can easily suffer.

The right reverend Prelate the Bishop of Southwark got to the heart of this when he said that legislating that Rwanda is safe does not make it so. The noble and learned Lord, Lord Falconer of Thoroton, touched on that point. Just saying an apple is a pear does not make it such. Saying that a dog is a cat does not make it such. It may be your opinion, but it is not true—and that is surely what we have a duty to try to do in this place.

On process, procedure and governance, during our debates on the Illegal Migration Bill and the treaty, I complained that we had not been treated properly as a Select Committee in the way you would expect Select Committees to be treated. Suella Braverman, the then Home Secretary, declined to appear before the Select Committee. We did not see James Cleverly in the context of this Bill. However, we did see the Lord Chancellor, Alex Chalk, and I pay tribute to him for the way he delivered his evidence and took the questions we put to him. As the noble and learned Lord has just said, it is the duty of the Home Secretary of the day to explain the intentions of legislation. If there is anxiety about something as important as a compatibility statement, they should explain why they feel unable to give it.

My noble friend Lord Anderson of Ipswich rightly said that we are ill-equipped to make these decisions in Parliament. I did not serve as long as the noble Lord, Lord Howard, although we have the distinction of contesting the same parliamentary seat in the heart of Liverpool on separate occasions, or as long as the noble Viscount, Lord Hailsham, but I agree with what the noble Lord, Lord Tugendhat, said about the way in which legislation has traditionally been dealt with in another place and here. I cannot remember Select Committees being treated by Secretaries of State in the way that I have just described. Thinking all the way back to the British Nationality Bill 1981, on which I spoke many times, there were opportunities to hear the arguments, to discuss the implications and to make appropriate amendments. I have not felt that about this legislation or that which preceded it. I think it has been pushed through in a pell-mell way, bringing to mind the thought that, if you enact legislation in a hurry, you will end up repenting at some leisure.

Let me take noble Lords to page 15 of the report, which comes down to the role of the UNHCR and safety. “As of January 2024”, therefore as recently as last month,

“UNHCR has not observed changes in the practice of asylum adjudication that would overcome the concerns set out in its 2022 analysis and in the detailed evidence presented to the Supreme Court”.

The Supreme Court, not the House of Commons or the House of Lords, relied on the UNHCR when it came to a decision about questions of fact. The report states:

“UNHCR notes the detailed, legally-binding commitments now set out in the treaty, which if enacted in law and fully implemented in practice, would address certain key deficiencies in the Rwandan asylum system identified by the Supreme Court. This would however require sustained, long term efforts, the results of which may only be assessed over time”.


Well, clearly, we have not had the time to make those assessments, and again we are being urged to rush pell-mell. I will not detain the Committee much longer. One witness, Professor Tom Hickman KC, said:

“Parliament is effectively being asked to exercise a judicial function, to assess evidence, to look at detailed facts and, effectively, to distinguish the Supreme Court’s judgment, to say that things have moved on and it is not binding on Parliament—I do not mean in a non-legal way—in making its judgment. In my view, that is an inappropriate exercise for Parliament to conduct. It is a judicial function”.


This view was echoed by Professor Sarah Singer, who is quoted in paragraph 57 as saying:

“To contradict the Supreme Court in this way is, perhaps, not showing the respect to the court that should be owed as a constitutional principle”.


I conclude with the summary on page 35, which says:

“We have considered the Government’s evidence that Rwanda is now safe, but have also heard from witnesses and bodies including the UNHCR that Rwanda remains unsafe, or at least that there is not enough evidence available at this point to be sure of its safety. Overall, we cannot be clear that the position reached on Rwanda’s safety by the country’s most senior court is no longer correct. In any event, the courts remain the most appropriate branch of the state to resolve contested issues of fact, so the question of Rwanda’s safety would best be determined not by legislation but by allowing the courts to consider the new treaty and the latest developments on the ground”.


For all those reasons, I believe that the noble Baroness, Lady Chakrabarti, has done noble Lords a great favour in bringing these amendments to us in Committee. She has already shown her willingness to think further about whether they might be applied in other ways. That surely is what Committee stage is all about. The tone that has been struck in the course of this debate behoves noble Lords to think very deeply. I commend this report to the Committee.

[Lord Horam (Con)]

My Lords, I welcome the point made by the noble Lord, Lord Alton, about the tone of this debate, particularly in relation to the speech by the noble Baroness, Lady Chakrabarti. I warmly welcome her obvious desire to find some way forward in this difficult area, which we certainly need to do, but I am afraid there is a rock—a difficulty—in the way of her amendment. It makes a classic mistake: taking two separate organisations with different objectives and obligations, and placing one with a veto over the other.

According to my reading of the amendment, the UNHCR would in practice have a veto over what the UK Government can do; this is the difficulty. The noble Baroness used the word “stalemate”, but her proposals would also lead to a stalemate while the UNHCR went on for ever, we know not when, saying whether Rwanda was safe. There would be debates, hostilities and probably no eventual consensus as to whether it was safe. Surely a more sensible way forward would be to take existing circumstances and practice, and for each side to engage properly and responsibly with the other.

We have obligations to the UNHCR; we are obliged under the refugee convention to engage with the UNHCR, and so we should. We are obliged to take account of the social and humanitarian consequences for refugees, and so we should. But, equally, the UNHCR should take into account the real responsibility of Governments to defend their borders in the sensible way that their own democracies would expect. If we can get the two working together, something sensible may emerge from that.

It already has in Australia. I wish we would not always be quite so insular. For 10 years now, Australia has been operating an outsourcing policy of the kind to which the UK aspires. It started off in precisely the same way—with precisely the advocates on each side—that we did. In the end, the Australian Government invited in the UNHCR at three different levels: the prime ministerial level, the ministerial level and the ordinary regional level of civil servants and so forth. They came to an agreement on how it should work.

Not only that but the UNHCR, as a consequence of its willingness to get involved, had leverage. It got out of the Australian Government more legal routes for genuine asylum seekers, and the same should happen here. Our legal routes for asylum seekers are at present wholly unsatisfactory, because they are confined to a small number of countries and most countries are excluded.

My view of a proper immigration policy has always been that there should be a settled cap on how many we should bring in, which we put publicly to the people every year in Parliament. Within that cap, the priority should be genuine asylum seekers and only thereafter economic migrants or people joining their families here. That is the right way to approach a total immigration policy, of which this is numerically only a very small part.

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[Lord Sharpe of Epsom (Con)]

My Lords, it is simply the introduction to the Bill, so I am not entirely sure I get the drift of the question of the noble Baroness.

[Lord Alton of Liverpool (CB)]

My Lords, before the noble Lord concludes, can he say whether he will be formally responding to the Joint Committee on Human Rights, especially before we reach Report?

[Lord Sharpe of Epsom (Con)]

I have not yet had a chance to read the report, which I believe was published only today, but I will of course read it in due course and respond accordingly.

Illegal Migration Bill

Lord Alton of Liverpool Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

[Lord Griffiths of Burry Port (Lab)]

My Lords, I spent the whole of last week in Strasbourg, where there was a very similar response from the 47 nations of the Council of Europe towards what we are doing here, with bewildered questions about it put in debate. I simply add that to what the noble and learned Baroness, Lady Butler-Sloss, said about her experience in Warsaw.

[Lord Alton of Liverpool (CB)]

My Lords, I have two amendments in this group, Amendments 113A and 168B. In speaking to them, I will add briefly to the comments already made, all of which I associate myself with.

People have talked a lot about the reputational damage to this country worldwide as a consequence of this legislation. I jealously guard the reputation of Parliament, as many in this Chamber do, and it saddens me that this is in contrast with the modern slavery legislation that other noble Lords have referred to, which enjoyed consensus and which Theresa May constructed with pre-legislative scrutiny, bipartisan support and then bicameral support, with amendments made at every stage and the Government listening and incorporating those things. That is the way to make good legislation—not like this. Reputationally, this is damaging to Parliament.

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[Lord Purvis of Tweed (LD)]

My Lords, I will speak to Amendments 20 and 24 to 28 in my name.

It is notable that, despite Government Ministers on the Front Bench trying to promote this Bill in such vehement terms, for the votes in this Chamber the Conservatives cannot get more than 50% of their Members to support the Government’s position. That speaks volumes.

Amendment 20 seeks to restore the fundamental principle that, if people are to be deemed admissible to be removed to a safe country, it should be on the basis of the individual circumstances of their case and after a review of the circumstances that they will face. The Government are turning this on its head, which is simply wrong. We heard earlier about the due process of law. Amendment 20 seeks to restore what the Government seek to remove—the due process of law.

Amendments 24 to 28 follow from the comments of the noble and learned Baroness, Lady Butler-Sloss, on those countries in the schedule that are not party to the refugee convention—India, Kosovo, Mauritius, Mongolia and South Korea. We do not know, and the Minister will not tell us, whether we have a return and resettlement agreement with any of those countries because, as he told me earlier, these are secret agreements. What kind of arrangements do a Government enter into with another Government that would be secret? The only thing I can think is that the other Government have asked us to keep it secret, for reasons that the Minister will not divulge. But he is asking us to legislate and determine that they are safe countries.

There is an inconsistency with the Government’s position on Section 80B of the 2002 Act, which was amended by the Nationality and Borders Act 2022, over the definition of a “safe third state”. As amended, the 2002 Act is clear about what it is: a safe third state is to be judged with regard to what is relevant to the individual person. Section 80B(4) defines a safe third state, and Section 80B(4)(b) states that one of the characteristics of a safe state is that the person will not be sent to another state—refoulement. There is nothing in this Bill that will give protection to that individual.

In that same section, the refugee convention is specifically mentioned, both in subsection (4)(b)(i) and (4)(c), with regard to a criterion of safety for an individual. I regret very much that the noble Lord, Lord Wolfson of Tredegar, is not in his place. We had a constitutional law lecture at the start of Report on the duality of the system, and if I understood correctly, we should not impose requirements on Executives with regard to international conventions. The law—and the noble Lord, Lord Wolfson, was Justice Minister at the time of the 2022 Bill being taken through Parliament—states categorically that this is a requirement we have put in statute: other Executives have to be a member of the refugee convention or we will not send people to them. What kind of double standard is it that it is fine for us to insist on receiving countries adhering to the convention, but it would be fundamentally wrong for us to adhere to that same convention? This is a double standard we absolutely should not support.

I have leave from my colleagues to say that we on these Benches will strongly support Amendment 37 if the opinion of the House is tested. These aspects are fundamental to the Bill; they are about principle, but also practicalities and our standing in the world. Process of law is very important and we should protect it, and that is why these amendments should be supported.

[Lord Alton of Liverpool (CB)]

My Lords, like the noble Lord, Lord Purvis, I too strongly support Amendment 37 and will vote for it if the opinion of the House is tested. I would also like to support the remarks of my noble and learned friend Baroness Butler-Sloss, on behalf of the noble Lord, Lord Carlile, in moving those earlier amendments, particularly as they relate to safe countries.

My Amendment 21 would insert into Clause 5 the following:

“No person may be removed to a country listed in Schedule 1 if doing so would put that person at risk due to their protected characteristics as defined in section 4 of the Equality Act 2010”.


I raised this issue in Committee and I made a long speech, but I will not detain the House for long this evening. I especially cited the example of Nigeria and I do so again this evening, not least because I heard this morning of the case of Usman Buda, a Muslim, who was murdered in Sokoto state in north-west Nigeria in the last few days, because it was alleged—I repeat: alleged—that he had blasphemed. It is just over a year since the lynching of Deborah Emmanuel, a Christian, at Shehu Shagari College of Education, again following an unsubstantiated accusation of blasphemy. Nigeria is one of the 71 countries that criminalises blasphemy. It is worth remembering that this year is the 75th anniversary of the Universal Declaration of Human Rights, Article 18 of which insists that everyone has the right to believe, not to believe or to change their belief. That is why my amendment seeks to protect people who will be in danger if they are sent back to places like Nigeria because of their belief, non-belief or their desire to change belief.

When the Minister replies, will he say also how the Bill is compatible with Section 4 of the Equality Act 2010? Especially in light of what the noble Lord, Lord Purvis, said a moment ago about amendments affecting people because of their orientation, it is clearly in breach of that and of Article 18, for reasons of faith. That is enough on that subject for now. It is an issue we can return to later in our proceedings, when we come to not just safe countries but how we deal with people with these protected characteristics.

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[Lord Stewart of Dirleton (Con)]

My Lords, I do not think I did. The point I am making is that the serious harm suspensive claim in connection with Clause 38 makes it clear that persecution and onward refoulement are examples of harm that constitute serious and irreversible harm for the purposes of such a suspensive claim. Hence there is consideration of individual facts and circumstances.

On Amendments 19, 21, 24 to 28 and 37, I make an observation, namely that much in Clauses 5 and 6 and Schedule 1 draws on existing immigration law dating back some 20 years. To that extent, the provisions contained therein are not new; they provide necessary clarity as to the country to which a person may be removed.

As regards the consideration of the status of countries as places to which persons can be removed safely and which are on the safe list, that list has been added to over the years. It is instructive that some of the countries added to the safe list in terms of the Nationality, Immigration and Asylum Act 2002 were added during the period when the party opposite was in power: in 2003 Albania and Brazil; in 2005 India, Ghana for men and Nigeria for men; in 2007 Gambia for men, Kenya for men, Malawi for men, Mali for men, Mauritius, Montenegro and Sierra Leone for men—I merely exemplify. I reiterate that these are not novel provisions. They provide the necessary clarity as to the country to which a person may be removed.

The noble Lord, Lord Alton of Liverpool, raised a matter concerning the nature of the—

[Lord Alton of Liverpool (CB)]

Protected characteristics.

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Lord for his assistance. I refer him to the equality impact assessment we have published, which in short order answers his question. Again, I am grateful to him for helping me out in my difficulty there.

[Lord Alton of Liverpool (CB)]

After today’s debate, before we reach group 17 and my Amendment 163, which is on safe routes but which also incorporates this idea of using protected characteristics as contained in the Equality Act 2010, perhaps the Minister can give some further consideration as to whether that might be a useful criterion to use as and when the Government decide on the formula that we use for safe routes.

[Lord Stewart of Dirleton (Con)]

My Lords, in the face of that characteristically thoughtful and constructive suggestion, I am happy to assure the noble Lord that we will consider that between now and the point he refers to in relation to his forthcoming amendment.

On Amendment 37, tabled by the noble and learned Lord, Lord Etherton, I know that he has had the opportunity to discuss this amendment with the Attorney-General, my learned friend in the other place. Following that discussion, I will make one further point that I hope will reassure the noble and learned Lord. If the open expression of a person’s sexual orientation would prevent them living in a specified third country without being at real risk of serious and irreversible harm, they would meet the threshold for a serious harm suspensive claim as outlined in Clause 39, and the principles enunciated by the Supreme Court of the United Kingdom in the case of HJ (Iran) would be upheld.

Nationality and Borders Bill

Lord Alton of Liverpool Excerpts

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

[Lord Alton of Liverpool (CB)]

My Lords, like the noble Lord, Lord Coaker, I refer to a non-financial interest: I am a trustee of the Arise Foundation, which works for victims of human trafficking and modern-day slavery. Like the noble Baroness, Lady Hamwee, I too wish Part 5 was not in this Bill at all. As the noble Lord, Lord Coaker, told the Committee, it is odd to put issues concerning immigration and human trafficking together in this way, as though they are part and parcel of the same problem. They are not.

That is why my noble and learned friend Lady Butler-Sloss was right to be as passionate as she was and, reinforced by the remarks of my noble friend Lady Prashar, to say that the Government really need to recast and rethink this all over again. My noble and learned friend referred to the Salvation Army which is, as she said, the advisers to the Government on this issue. It says:

“The Salvation Army has held the Government’s Modern Slavery Victim Care and Co-ordination contract for over 10 years. In that time, we have supported 15,000 survivors of modern slavery. We, along with our colleagues across the anti-trafficking sector”—


all of us have seen reams of representations from pretty much every representative group that there is—

“would urge you to … ensure that vulnerable survivors of trafficking and slavery are not prevented from accessing the support they deserve.”

It is hard to see how many of the measures that we are debating very briefly in the context of such an important set of provisions will enable that to happen. I do not want to pre-empt what I am going to say on my Amendment 156A on the national referral mechanism, but simply to reinforce what the noble Lord, Lord Coaker, said in his curtain-raising remarks for the whole of this section.

My noble friend Lord Hylton, and I, along with my noble and learned friend Lady Butler-Sloss and the noble Baroness, Lady Hamwee, worked with the noble Lord, Lord Coaker, who was in another place at that time and doing incredibly energetic hard-working things to get the 2015 legislation on to the statute book. We all paid tribute then, as that came through on a bipartisan, bicameral basis, through both Houses, to the right honourable Theresa May, for what Lady May did in working for this legislation to happen. However the history books judge her period as Prime Minister or Home Secretary, I believe this is her most lasting legacy and something she should be enormously proud of. That is why I too quoted her remarks at Second Reading, and I was glad to hear the noble Lord refer to them again today. I urge the Minister to go back to what she had to see had to say about this.

The right reverend Prelate the Bishop of Bristol and I go back a long way. She was once a curate in what was then the Liverpool Mossley Hill constituency, so, we also have something in common with the Minister. Bristol and Liverpool have something in common: their knowledge of the transatlantic slave trade. In 2015, we saw this as a way of cleansing some of the past: not breaking down monuments or trying to cancel history but doing something positive. My worry is that what we are doing now is undoing so much of that good work. What are these imaginary windmills that, like Don Quixote, we are being encouraged to tilt at today? There is no data. Where is the justification? Knowing that the Minister has a forensic brain, I hope he will take us through what the justifications are for what we have here. Why, as the noble Lord, Lord Henley, said, are we disregarding what our own Joint Committee on Human Rights has said to us?

I have one more thing to say, and that is on Amendment 154, referred to by the noble Lord, Lord Coaker: Proposed new subsection (2A)(g) refers to

“fear of repercussions from people who exercise control over the person”.

Certainly, through the work that I have been privileged to be involved in with the Arise Foundation, we have seen many examples of that. That children are being treated no differently in this legislation beggars belief.

Amendment 154 also refers to victims of trauma. If someone has been traumatised, then of course the statements they will make, even possibly the untruths they feel they have to tell to prevent being sent back where they came, should not be held against them. This section also deals with people with diminished capacity, and I was struck by what the noble Baroness, Lady Hamwee, said in one of her examples about people with diminished responsibility. We have all seen cases like that. The noble Lord, Lord McColl, who we will hear from later on, has done more than anyone in your Lordships’ House to draw to our attention the need to do more to help vulnerable people in that situation.

These amendments are good, but you cannot make a silk purse out of a sow’s ear. I wish this was not in this Bill at all. There is still time for the Government to recast. Given the concerns that have been echoed, not just here, but right across the sector, I hope that the Minister will take this back to the Home Office, take it back to the Government, and say let us think again.

[Lord Dubs (Lab)]

My Lords, I am also a member of the Joint Committee on Human Rights, and I am grateful to my colleagues on that committee who have spoken. The committee looked very hard at this issue, and we came up with very clear recommendations. I pay tribute to the noble Lord, Lord Coaker, for having set the scene for this debate.

I want to be brief but will repeat the question put by my noble friend Lord Coaker. Why are the Government doing this? On some aspects of the Bill with which I am in profound disagreement, at least I understand why the Government, in their own way, want to do what they are doing—it might be quite wrong, but I understand it. In this case, I do not even know what the case is for the Government to do this. Are they trying it on so that they can withdraw the provision and seem to be meeting the wishes of the House? There is no justification at all.

Most Members of this House will be aware that people who have been in slavery, trafficked or traumatised by sexual exploitation, often find it very difficult to talk about their ordeal. They often want to keep quiet, because the experience has been so horrifying for them that they cannot put their own case to officialdom here. I have seen this over the years when I have met people. In fairness, some of them want to talk a great deal to get their experience out of their system, but many others do not. It is a natural human reaction; one does not want to talk about one’s awful experiences; one wants almost to shut them out. Then one finds there is a need to reveal information.

I was talking to some NGOs which were working with people who had crossed the Sahara. They said that the majority of women who fled for safety across the Sahara had been raped on the journey. Many of them do not want to talk about that. It is not within their tradition and culture to talk about it, yet here we are demanding that they should.

I find it very depressing that we have to debate this at all. I urge the Minister to say that the Government will think again. That is the only way out, otherwise, when we get to Report, it will not be a nice day for the Government, because we are bound by the comments we are making today, and by having a sense of integrity in putting forward the case for people who have been in slavery or traumatised to have a reasonable chance of being dealt with. The Government should not be trying to find ways to keep them out. I ask them to think again.

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[Lord Wolfson of Tredegar (Con)]

I think it might be best if we just moved on from that because, respectfully, I am not sure that it was a particularly good comment in the first place.

The measures in the Bill build on the landmark—it really was landmark—legislation brought in by the future Prime Minister, Theresa May, in 2015. On this occasion, I am very happy to acknowledge that it was brought in by the coalition Government; it was a joint effort. Notwithstanding that I am not a Home Office Minister, as the noble and learned Baroness, Lady Butler-Sloss, reminded me on a number of occasions, I can say that the Home Secretary is committed to bringing forward further legislation in the area of modern slavery as a priority, to ensure an efficient and resilient system in tackling modern slavery. That department, which is obviously not mine, will look to introduce those measures when parliamentary time allows.

[Lord Alton of Liverpool (CB)]

In that case, why do we not wait for that legislation and do it comprehensively, rather than put into law things to which there is so much opposition? Does the Minister also accept that, in 2015, a number of really positive changes were made to that Act in your Lordships’ House because the Government chose to listen?

[Lord Wolfson of Tredegar (Con)]

There were two questions there. Why now? I was going to come to that, because that is a point that the noble Lord made earlier. As to listening to your Lordships’ House, the Government always listen to what goes on in this House. They always listen but they may not always agree.

The noble Baroness, Lady Meacher, I think with some sympathy, referred to me as the “poor Minister” responsible for responding. I am poor in the sense that you do not take this job for the money, I can say that. I also cannot promise the meeting with the Home Secretary. What I can promise is that I will pass on what the noble Baroness said to the relevant people in the home department.

We have heard a number of arguments for removing Clauses 57 and 58 from the Bill. I will deal with those first, because I think that is really the head-on charge that has been put to me. I suggest that these clauses are important provisions to encourage disclosure of information at the earliest stage so we can identify victims and provide them with direct support as early as possible. The noble Lord, Lord Coaker, moving the amendment, asked why the provisions were necessary and quoted the former Prime Minister asking why artificial deadlines were required. The right reverend Prelate the Bishop of Bristol suggested that the clauses would stop people coming forward. Far from deterring victims, these clauses are intended to encourage genuine victims to come forward and get protection and support on the earliest possible occasion.

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[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

My Lords, if Amendment 156 is agreed I cannot call Amendment 156A by reason of pre-emption.

[Lord Alton of Liverpool (CB)]

My Lords, it is a great pleasure to address Amendments 156A and 156B in this group and to follow the noble Baroness, Lady McIntosh of Pickering, and what she said about the Scottish Law Society. I very much associate myself with her remarks. I turn the attention of the Committee to these two amendments, the kernel of which is

“(1ZA) Guidance issued under subsection (1) must, in particular, provide that the determination mentioned in paragraph (c) is to be made on the standard of “suspect but cannot prove”.”


My explanatory statement says—I will not read it all—

“This amendment would ensure that amendments made to the Modern Slavery Act 2015 do not raise the threshold”—


the point the noble Baroness has just referred to—

“for a Reasonable Grounds decision when accessing the National Referral Mechanism in line with—”

the guidance.

One thing that came out of the last debate was that it was pretty clear that the whole Committee is agreed about one thing: that the national referral mechanism is vital to the recovery and safety of survivors of modern slavery. Since its introduction in what the noble Lord, Lord Coaker, was right to refer to as “landmark legislation” in 2015, a point echoed by the noble and learned Lord in replying to that debate, it has allowed us to identify survivors and ensure they receive the right support and are able to assist law enforcement in tackling this abhorrent trade in human beings and human suffering. I am very grateful to my noble friend Lady Prashar and to the right reverend Prelate the Bishop of St Albans for signing Amendment 156A.

Accessing the NRM is the crucial first step on a survivor’s journey to recovery, giving them access to vital legal and financial support, safe accommodation and an exit from the kind of exploitation that the noble and learned Baroness, Lady Butler-Sloss, referred to earlier. It enables them to start the process of rebuilding their lives, empowering themselves and even bravely supporting the prosecution of traffickers so that more potential victims are saved from exploitation. First established in 2009, and supported by successive Governments, the NRM was recently highlighted by the Organization for Security and Co-operation in Europe as being a key element in the fight to end slavery. Since then, with the introduction of the Modern Slavery Act 2015, the UK has become a world leader in this fight and a beacon of hope for those who have been trafficked and enslaved.

However, as the noble Lord said earlier, and I agree with him in this sense, the national referral mechanism is not perfect. That is clear but the opportunity to do something about it is up the track. There is no need for Part 5 to be incorporated in the Bill, when it is inconsistent with much else in it anyway. The noble Lord told the House earlier that there is to be new legislation, so why on earth can we not wait for that? There is an old saying that when you legislate in haste, you repent at leisure; that is what we will do if we simply push this through in a pell-mell way. The mechanism may not be perfect, but it is better than anything else at the moment and we should be very careful about what we do to it.

There is a catalogue of confusion and delays, but I am sure the Government do not believe that the only solution is simply to reduce the number of poor people able to access support. However, that is exactly what Clause 59 will do. Effectively increasing the threshold that these traumatised individuals must meet, almost from the get-go, to receive support will not only leave many with the choice of slavery or destitution; it will fundamentally undo the years of hard work by government, police, NGOs, charities and Members of both Houses.

Even now, far too many survivors go unrecognised and are excluded from support. Despite our understanding of the nature of trauma and the horrors so many have gone through, many do not receive a “reasonable grounds” decision and are forced to reapply. In the previous debate, we were urged to get into the real world. The noble Lord, Lord Coaker, had a better definition of what the real world is than the one we heard from the Government Front Bench. I will do as the noble Baroness, Lady Hamwee, did earlier and share one example with the House, if I may.

It is the case of a poor woman who was the victim of trafficking and violent sexual exploitation. By the time she arrived in the UK, she already had severe PTSD. Her symptoms included involuntary numbing, avoidance, dissociation and shame. She failed to disclose her trafficking experience in her early interactions with the Home Office, due to the severe trauma she had experienced. These inconsistencies later contributed to her receiving a negative decision on her trafficking claim. However, they needed to be understood in the context, as I said earlier, of prolonged exposure to trauma at an early age and fear of reprisals from her abusers.

Clause 59 risks raising the threshold for a positive reasonable grounds decision at this vital first stage, meaning that survivors such as that woman will be forced to meet an even higher threshold of evidence almost immediately, before they have accessed safety and a lawyer, translator or advocate to help provide the evidence that is expected of them. The noble Lord who addressed the House earlier has promised to write to the noble Lord, Lord Coaker, me and others with more data. Here is a little data that I will share with the noble Lord, Lord Sharpe.

It is worth noting that 81% of all negative decisions at this first stage which where reconsidered were found to have been wrong, and the victim deserved a positive reasonable grounds decision. Currently, there are an estimated 136,000 victims of modern slavery in the UK, and a little over 10,000 were referred to the NRM in 2020. That means there is a vast number of individuals who have been trafficked and enslaved in our country and are already far from the safety offered by the national referral mechanism. Were we to raise the threshold to access safety and support, it would surely only play into the hands of the traffickers and slave masters by preventing survivors sharing their experience and supporting criminal investigations.

I note that the Government have denied that Clause 59 will increase the threshold, and that the intention behind it is to bring us in line with the European convention on action against trafficking—ECAT. However, many who are in the anti-slavery movement, to which we heard a lot of references earlier, and on the ground in the real world supporting vulnerable people every day believe that it is already harder today than it was, even a year ago, to get a positive decision. As such, if not remedied in the guidance, the change in language represented in this clause would effectively raise the NRM threshold.

Furthermore, the Government have rightly decided to include in the Bill that conclusive grounds decisions be made on the balance of probabilities. If the intention is not to raise the threshold, then I simply ask the Minister that they put in the Bill that reasonable grounds decisions be made on the tried and trusted standard of “suspect but cannot prove”, which is the essence of Amendments 156A and 156B. That would allow the Government to change the language of the Modern Slavery Act to be more in line with ECAT, in order to provide more consistency between conclusive grounds decisions and reasonable grounds decisions in the Bill. Vitally, it would not raise the threshold for survivors of trafficking to receive a positive decision, therefore ensuring that these poor people receive the support they so desperately need and the authorities have the evidence they need to end slavery.

Article 10(2) of ECAT says that

“if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence … has been completed”.

Both ECAT and the Modern Slavery Act envisage that support be given to victims through the NRM as the earliest stage possible, when someone is identified as a potential victim. Raising the threshold only to those who prove their status as a victim of trafficking would undermine the point of the three-stage referral system currently in place. That support is crucial to enable victims to make any discourses from a position of safety.

No doubt the Minister will say that the NRM may have been abused, but I ask him to provide the justification for that claim. As the noble Lord, Lord Coaker, and I said earlier, where is the data? I refer the Minister to the report by the Rights Lab at the University of Nottingham for evidence that the NRM is not being abused. Indeed, according to many reports, one of the biggest problems with our NRM is that it is underutilised; there are already a low number of referrals to the NRM. According to the Global Slavery Index, the estimated figure for the prevalence of modern slavery in the UK is 136,000, yet in 2020 only 10,613 potential victims were referred to the NRM. Raising the threshold would serve only to further restrict those who access the vital resources of the NRM.

I therefore felt it necessary to table these amendments. Those who are referred to the NRM are often among the most vulnerable, in the most traumatic moments of their lives. We should not be raising the threshold; we should be doing everything we can to facilitate their access to support. I beg to move.

[The Lord Bishop of St Albans]

My Lords, I shall speak to amendments 156A and 156B in the names of the noble Lord, Lord Alton of Liverpool, and the noble Baroness, Lady Prashar, to which I have added my name. I hope I can be fairly brief because much of the ground has been set out brilliantly by the noble Lord, Lord Alton, and I am very grateful for that.

The reality of Clause 59 is that raising the threshold—from “reasonable grounds” to believe that someone maybe a victim of modern slavery, to “is” such a victim—could lead to the national referral mechanism failing to identify victims of modern slavery, effectively shutting them out of the support that they so desperately need. That was picked up yesterday in our General Synod debate across the road, to which the right reverend Prelate the Bishop of Bristol has already alluded.

The Clewer initiative, to which she has also alluded, is our response to modern slavery. It was set up in 2016 and published three strategies for 2022. Two of these included promoting victim identification and providing victim care and support. Our concern, along with the Clewer initiative, is not just to get down to the legal minimum but to try to accompany people on what is the most traumatic journey, through which many of them will need considerable help. Part of the reason for that—many Members of your Lordships’ House will grasp this but many people in wider society do not—is that much modern slavery is effectively hidden, and sometimes so subtle that even the people involved in it do not always get what is going on. That is why it affects drug traffickers, fruit pickers, beauticians, people working in nail bars and so on, as well as the obvious areas where people find themselves caught up—for example, in the sex industry.

This coercion is a subtle thing, but it plays a central role in keeping individuals in this misery. It can range from violence to substance addiction, debt bondage and, of course, withholding people’s papers. So, it is a long and complex process. The CURE initiative states that beyond these factors, one of the key elements in controlling victims of modern slavery is creating a fear of any authority so the victims simply do not know where to go. Often, victims will hide.

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

My Lords, I am grateful to all noble Lords for their contributions. The amendments in large part concern provisions around the identification of modern slavery and trafficking victims.

First to speak was my noble friend Lady McIntosh of Pickering, who sought an explanation for Clause 59. The clause places the conclusive grounds threshold of a “balance of probabilities” into legislation. This is in line with the threshold that is currently applied and accepted by the courts and aligns with our current obligations under the treaty to which a number of speakers have referred: the Council of Europe Convention on Action against Trafficking in Human Beings —ECAT.

We submit that to remove this provision, as Amendment 156 would, would cause an inconsistent approach towards the two thresholds: the reasonable grounds threshold would be contained within legislation, whereas the conclusive grounds threshold would remain only in guidance. By legislating for both thresholds, decision-makers are able to rely on clear precedent and the process is both certain and ascertainable. This search for clarity will run through and inform the answers I will put before the Committee in this debate.

Amendments 156A and 156B from the noble Lord, Lord Alton of Liverpool, would amend the test for a reasonable grounds decision in legislation. The matter of whether there are “reasonable grounds to believe” that an individual is a victim is the appropriate threshold —again, as it mirrors our obligations under ECAT. For those reasons, I cannot accept Amendments 156, 156A and 156B.

I shall expand on matters raised by the noble Lord, Lord Alton, touching first on the ability that exists in legislation for people to challenge a decision made. Multiagency assurance panels are required to review all negative conclusive grounds decisions made by the competent authority for all cases submitted to the relevant competent authority. Multiagency assurance panels do not review negative reasonable grounds decisions. The role of multiagency assurance panels and the processes they follow are set out in the modern slavery statutory guidance for England and Wales promulgated under Section 49 of the Modern Slavery Act 2015. There is equivalent non-statutory guidance for Scotland and Northern Ireland; it is not found in primary legislation. The guidance states:

“An individual, or someone acting on their behalf, may request reconsideration”


of a negative reasonable grounds decision by the competent authority

“if additional evidence becomes available that would be material to the outcome of a case, or there are specific concerns that a decision made is not in line with guidance.”

The final conclusive grounds decision remains the responsibility of the competent authority. Multiagency assurance panels do not have the ability to overturn negative conclusive grounds decisions made by the competent authority. The competent authority can be asked to review a case where there is concern that the decision has not been made in line with existing guidance; that, in the view of the multiagency assurance panel, that would add value and clarity but has not been sought; or that the evidence provided and used in the decision-making process was not weighed appropriately and considered. So an element of its ability to reconsider and discretion remains in place.

I think the whole Committee will be aware that understanding of the painful effects of trauma and suffering on individuals and their ability to recollect is developing and has developed considerably over recent years, as a better comprehension of these strains and pressures comes to be understood. That understanding filters into this field, as into others. In particular, I refer your Lordships to understanding in the criminal justice system as to why people may make declarations or give statements that are not in their best interests or that they subsequently seek to go back on.

This topic seems to inform the points raised by the right reverend Prelate the Bishop of St Albans and my noble friend Lord Deben. Victims may well not want or be able to relive their trauma to state officials. Moulded by forces that those of us who have been happy enough to lead comfortable and sheltered lives can barely comprehend, they may find state officials intimidating.

Will the policy inhibit such people and impact adversely their ability to come forward and speak up? We recognise that some victims of exploitation may be fearful of coming forward to talk to the authorities, including some of the organisations that operate as first responders. That is why a range of organisations operate as first responders, including charities—some of which the Committee has heard about—that work closely with victims and local authorities.

We are keen to ensure that potential victims of trafficking are identified as early as possible and are supporting this with an improved legal aid offer for victims of trafficking with no immigration status within the United Kingdom and subject to immigration removal. This is to ensure that individuals receive the correct support package at the earliest opportunity to address their needs, regardless of when cases are brought, to make sure that those who need protection are afforded it.

[Lord Alton of Liverpool (CB)]

My Lords, the Minister is dealing with these issues with great sensitivity and I welcome the tone of his remarks. He has—I think deliberately—left a number of questions hanging, saying that a lot of work is being done on this and that people are considering these sensitive and detailed questions and looking at them more thoroughly. This all begs the question: who has demanded this change in this legislation at this time, in advance of us having detailed information laid before us?

It seems that we have it the wrong way around. Given that his noble friend said earlier that there will be a Bill specifically to improve the modern-day slavery legislation, why cannot we hold this over until we see more clearly where the information is wrong, where it is right and what the evidence is? Is it not the nature of good government to look and examine the evidence before bringing measures forward? I do not see any evidence that this has happened so far.

[Lord Stewart of Dirleton (Con)]

My Lords, I do not wish to appear to give a cursory answer to the noble Lord in a debate of this sensitivity, but my noble friend Lord Wolfson of Tredegar committed to write on the data—I am grateful to the noble Lord for nodding his head in recognition. I imagine that the point he seeks to raise will be discussed in any such correspondence. Does that satisfy him at this stage?

[Lord Alton of Liverpool (CB)]

I am grateful to the Minister, but it seems to be the wrong way around. Normally, there is pre-legislative scrutiny of complex and sensitive issues, and this is a classic example where there should have been pre-legislative scrutiny, as there was before the 2015 legislation, in some detail and at some length. Why was it thought that in a Bill dealing specifically, as the noble Lord, Lord Deben, said, with nationality, borders and immigration, we should deal with an issue of this sensitivity? Would it not be better for the Government to withdraw this section of the Bill and come back with comprehensive legislation that we could all support?

[Lord Stewart of Dirleton (Con)]

My Lords, I hear the points that the noble Lord makes. With respect, it seems that he moves forward into a question already put to my noble friend Lord Wolfson of Tredegar when he stood at the Dispatch Box in relation to the earlier matter. As he advised the Committee, the Government are concerned about misuse of the system. Rather than seeking to anticipate data that I confess not to having, with the noble Lord’s permission, I will move on from this point. I am again grateful to him for nodding his head.

I was expanding to the Committee on matters raised by the right reverend Prelate the Bishop of St Albans. We recognise that potential victims may not feel able at an early point to discuss information relevant to these matters bearing on their experience. That is why, in Clause 58, we have included the safeguard of “good reasons”. Each case will be considered carefully, including any reasons for not bringing information earlier, which will enable decision-makers to take trauma into account.

I am sure that I am merely rehearsing matters already within the knowledge of the Committee, but examples of what may constitute good reasons for late disclosure of information include where the victim was still under the coercive control of the trafficker, did not recognise themselves as a victim at that point, or for reasons relating to capacity—intellectual, emotional or age capacity—did not understand the requirement or the proceedings.

We will set out our approach in guidance, giving decision-makers the tools to recognise the effect that traumatic events can have on people’s ability to accurately recall or share or recognise such events. We are concerned that by too prescriptively setting out the parameters of what can constitute good reasons in guidance, we will inhibit the flexibility of decision-makers to take a case-by-case approach, as my noble friend Lord Wolfson of Tredegar sought to emphasise in his submission to the Committee earlier, depending on a person’s specific situation and vulnerabilities.

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

My Lords, in opening from the Front Bench, the noble Lord, Lord Coaker, made a number of points in relation to the position of the Government in relation to the one-nation Conservative tradition, if I may put it like that. I will preface my remarks to the Committee by saying that, just as with our then coalition partners the Conservatives were in the forefront of dealing with the issue of modern slavery, so we were, hundreds of years ago, in dealing with the issue of slavery, as it then stood. Where slavery exists, Conservatives will always be found in the forefront of any attempts to confront it.

In relation to Clause 61, there is currently no policy on whether, or in what circumstances, individuals should or should not receive additional recovery periods under the national referral mechanism. Clause 61 addresses this gap by introducing a power to withhold additional recovery periods where an individual has already benefited from a recovery period and the further reported exploitation happened prior to the previous referral into the national referral mechanism, unless appropriate circumstances are set forth. This is not an attempt to create two tiers, however it may be read; rather, it is an attempt to put into legislation appropriate controls against misuse, where that misuse takes place.

Amendment 158 seeks to remove this power if any of the incidents of exploitation occurred when the individual was under 18 years of age. I seek first to reassure the Committee that the provision may be applied only when the further positive reasonable grounds decision arises from things done wholly before the previous reasonable grounds decision was made. Therefore, this power does not apply in cases of re-trafficking.

From the Front Bench, the noble Lord, Lord Coaker, like other noble Lords at an earlier stage, raised the question of why these provisions appear on the face of an immigration Bill. It is because there are overlaps between immigration and modern slavery, which the Bill recognises and seeks to address, but it also goes further in providing clarification on people’s entitlement.

As I said in relation to the previous grouping, and as I am sure we will all have occasion to say again, the complex nature of exploitation, as the noble Lord, Lord Coaker, identified in his opening speech and at other times in this debate, and the potential resulting safeguarding needs, particularly for children, are recognised by the Government. This clause is designed to allow for discretion in how decision-makers apply the disqualification, ensuring that the welfare of children will be taken into account. This discretion is an important part of our needs-based approach to the provision of support, and in the circumstances there is no need for the carve-out that the amendment proposes.

Moving on to Amendment 159, while we understand the intention behind this amendment, the existing discretionary element strikes the right balance between allowing decision-makers flexibility to grant additional recovery periods and preventing the misuse of the NRM protections to which I referred. Decision-makers will be able to consider the vulnerabilities and circumstances of the individual.

Turning to the amendments tabled by the noble Baroness, Lady Ludford, in relation to Clause 62, as noble Lords have outlined, ECAT envisages that recovery periods should be withheld on grounds of public order and improper claims. However, ECAT does not include a definition of “public order” and, to date, that omission has hindered our ability to disqualify suitable individuals in practice. The question was posed of whether the provision as it stands might impede operational decisions in relation to prosecution, but I submit that these decisions would be taken at all times in relation to that developing understanding of the pressures and difficulties. I fully appreciate that I am understating those things by using those expressions. Those pressures and difficulties are upon persons who are victims of modern slavery or human trafficking.

[Lord Alton of Liverpool (CB)]

I am grateful to the Minister. In Clause 62, the phrase “bad faith” seems extraordinarily ambiguous. Can he clarify that? What jurisprudence does this phrase come from and on what basis will it be interpreted in the courts?

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Lord for that intervention. I was proposing to deal later with the expression “bad faith” and its source, but, to help him at this stage, it is not drawn from any comparable legislation, nor from the authority of the courts. We do not hark back to that. Rather, the nature of the problems that must be confronted in relation to this is sufficiently protean and diverse that a need was identified to arrive at a broad expression in the Bill, and “bad faith” was the language selected after consideration among Ministers and officials to represent that.

--- Later in debate ---

In closing, I urge your Lordships to recognise that 12 months of statutory support, and 12 months’ leave to remain to access that support, are vital to enabling a victim of modern slavery to recover and to engage with the police. I will quote my friend, the noble Lord, Lord Boateng, who told me the other day about a Zulu exhortation: “Vukuzenzele”, which noble Lords will know from their Zulu studies means “Just get on and do it.” The Government should just get on with providing confirmed victims the support and leave to remain which we already know they need. I shall listen carefully to the Minister’s response and will come back with further amendments on Report depending on what she says. I thank all those who will be taking part in this debate. I beg to move.

[Lord Alton of Liverpool (CB)]

My Lords, with his usual clarity, the noble Lord, Lord McColl, has introduced his amendments to Clauses 63 and 64. I regard it as one of the privileges of serving in your Lordships’ House to have become a friend of the noble Lord, Lord McColl, over these last 20 years. I not only deeply admire everything he has done on the issue of human trafficking but have seen first-hand some of the extraordinary work he has done with Mercy Ships, where he has given so much of his life and time as a notable surgeon. I have no hesitation today in echoing the remarks he has made to your Lordships’ Committee. I am not sure I can echo the Zulu remarks he quoted, but I think Nelson Mandela once quoted a Zulu saying about “ubuntu”, meaning “brotherhood”, that

“we are only people because of other people.”

In many respects, that goes to the heart of what we are trying to express in these debates and amendments today.

Statutory support for victims in England and Wales during the time they are in the national referral mechanism—the recovery period—which was the subject of Amendments 156A and 156B, which I spoke to earlier, is long overdue. We are seven years behind Northern Ireland and Scotland, and I welcome the Government catching up with the rest of the UK. I would like to say with the noble Lord, Lord Morrow, in hearing distance that I deeply admire what he managed to achieve in Northern Ireland, and I look forward to hearing what he has to say about his Amendment 171B, which, again, I associate myself with. Indeed, I support all the amendments in this group.

I draw the Committee’s attention to the current version of the statutory guidance on victim support in England and Wales, which says:

“The Modern Slavery Victim Care Contract operates as a bridge, to lift adult victims out of a situation of exploitation and to set them on a pathway to rebuilding their lives. As such, it is important that no support provided through the Modern Slavery Victim Care Contract prevents potential victims or victims from accessing support they would otherwise be entitled to receive.”


The statement about what a victim is entitled to receive goes straight to the heart of Amendments 169A and 170A.

Under the Bill, what do the Government intend to provide in terms of support? The noble Lord, Lord McColl, said that without support, the Bill simply becomes a mirage—a good metaphor to use. What are the Government going to do to provide support during the recovery period? Will the support be in line with Article 12 of the European convention? Both Ministers talked earlier about the importance of compatibility in these areas. But, as the noble Baroness, Lady Ludford, said, we seem to pick and choose what we want to have compatibility with and what we do not.

The frequently referred to and admirable Joint Committee on Human Rights recently published its review of Part 5 and highlighted that

“clause 63 (new section 50A MSA) does not specify details as to what ‘any necessary assistance and support’ should include, leading to some ambiguity”—

a word I referenced earlier in connection with being in good faith—

“as to whether clause 63 (new section 50A MSA) will indeed adequately give effect to the UK’s obligations under Article 12 ECAT to provide the types of assistance specified in that Article.”


It is worth recording in Hansard what the Committee said:

“The Secretary of State should confirm whether ‘necessary assistance and support’ will include all of the types of assistance listed in Article 12 ECAT”.


We will all listen closely to the Minister’s response to these amendments and specifically on that point about whether the support will be in line with Article 12 of the European convention.

I have also co-signed Amendment 170. As I have already said, the stated objective of the Government’s support to victims is

“to lift adult victims out of a situation of exploitation and to set them on a pathway to rebuilding their lives.”

Who could disagree with that? All the evidence from those working with victims is that this goal is far from completed when a person is confirmed as a victim of modern slavery by the Government. To continue on the pathway to recovery, as the Government themselves have acknowledged, a victim needs much longer support.

The noble Lord, Lord McColl, has been making that case for many years in your Lordships’ House and I have been happy on previous occasions to give him support. 1am glad that he has taken the opportunity provided by the Bill today. If the Minister cannot agree to incorporate this now, will he tell the noble Lord, Lord McColl, and Members of your Lordships’ Committee that, when the putative legislation that was referred to earlier in this area is brought forward, it will at least be attended to then? I am glad that the Government have recognised the need, but they should now act to bring their commitment into a concrete reality.

I also want to touch briefly on the amendments to Clause 64 in the name of the noble Lord, Lord McColl, which seek to give victims who are eligible for support leave to remain. It is not just the right thing to do for these individuals, it makes policy sense to ensure that we are able to bring perpetrators to justice. It has been said again and again, by the noble Lord, Lord Coaker, the noble Baroness, Lady Hamwee, and others who have re-emphasised this throughout today’s debate. Without evidence from victims, cases are much harder to prosecute. Here is an interesting point: it also makes economic sense.

A 2019 report from the University of Nottingham, which the noble Lord, Lord Coaker, will be well aware of, on an earlier version of the Modern Slavery (Victim Support) Bill introduced by the noble Lord, Lord McColl of Dulwich, showed that his Bill was “value for money”. I hope that the Minister’s officials have drawn that report to his attention, so I ask him: why would the Government not support the amendments in the name of the noble Lord, Lord McColl, and give this vital support to victims of modern slavery?

[Lord Morrow (DUP)]

My Lords, I thank the noble Lord, Lord Alton, for his kind remarks. For victims of modern slavery, escaping from their exploitation is only the beginning of their journey towards recovery. I will direct my remarks today to Amendment 171B in my name, which would assist victims on this journey.

I have been astounded by the individuals whom I have come across over the years, particularly those who I had the privilege of meeting during the passage of my Private Member’s Bill in the Northern Ireland Assembly who have been victims of modern slavery in this country. These victims have experienced extreme exploitation and abuse in this country yet have shown commendable fortitude and strength in their determination to recover from their ordeal. When I consider Part 5, and in particular Clause 64, it is those individuals I think of. It concerns me that Clause 64, if unamended, will make the leave to remain criteria narrower and, in doing so, make vital support for survivors even more inaccessible.

Clause 64 will impact victims of modern slavery across the UK, yet there has been no impact assessment published to date—at least, I have not had sight of it—on how many victims will be granted leave to remain under the Bill, compared to the current numbers. I hope the Minister can address why this is the case and provide a timeframe for when we can expect to see one.

Previously, I had the opportunity to meet Anna, a young Romanian girl who was kidnapped here in London, trafficked to Galway and then moved to Belfast to be sold into the sex trade. This young girl was moved from pillar to post, to be exploited in one place then another. The only consistency she knew was exploitation. When victims like Anna escape from their situations of exploitation, they need stability and certainty as they start their recovery and begin to work through their trauma.

I am concerned that whilst Clause 64 puts discretionary leave to remain measures on a statutory footing, in the process of doing so the Government have made the criteria much narrower than current guidance. In particular, Clause 64(4) would prevent leave to remain being granted to a confirmed victim on the grounds of their need for support for their recovery, if they could receive that support elsewhere—even when the alternative country is not a signatory to the European trafficking convention. The Government have also not set out which countries without ECAT would be acceptable. This restriction is likely to affect EU citizens who have recently become entitled to automatic consideration for discretionary leave if they have no other right to remain, since the Secretary of State is likely to argue that these citizens could receive support within the EU. It sounds very much as if the Government are unfairly trying to skirt their moral duties and responsibilities to these victims. This goes to the point that, contrary to what the Government have said, this Bill is not fair for victims of modern slavery.

Amendment 171B in my name would ensure greater stability by removing the criteria of not granting leave to remain if assistance could be provided or compensation sought in another country. Without this amendment victims such as Anna, upon exiting their situation of exploitation, could find themselves without leave to remain and instead relocated to another country where they may not know anybody, speak the language or understand the customs. This will be disorientating, unsettling and frightening, and it will compound their vulnerability to re-trafficking.

I agree with the noble Lord, Lord McColl, and Sir lain Duncan Smith MP in the other place on the need for 12 months’ leave to remain to ensure that all confirmed victims can receive support, as proposed in the noble Lord’s Modern Slavery (Victim Support) Bill. I put on record my support for Amendments 170B and 171A in the name of the noble Lord. While Amendment 170 to Clause 63 in the noble Lord’s name applies only to England and Wales, I am pleased to see that steps are being taken to provide statutory support to confirmed victims in Northern Ireland. Through Section 18(9) of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, statutory support is already available to victims with a positive conclusive grounds decision on a discretionary basis.

Northern Ireland (Executive Formation) Bill

Lord Alton of Liverpool Excerpts

2nd reading (Hansard): House of Lords
Wednesday 10th July 2019 Lords Chamber

[Lord Alton of Liverpool (CB)]

My Lords, the noble Lord, Lord Cormack, has reminded us of his own deep commitment to devolution, and it is one that I share. In his remarks responding to the Minister earlier, the noble Lord, Lord Dubs, talked about the democratic deficit in Northern Ireland. I do not think it is either supportive of devolution or a way to fill that deficit to introduce measures that trample on those deeply held sensitivities that the noble Lord, Lord Cormack, just described. In fact, it will have the opposite result.

If we are being sensitive, one might at least ask why amendments were tabled in another place yesterday that do not even do the job they set out to do. The Minister told us at the outset that they will now have to be recast to be incorporated in a way that would be competent to do the things that the movers of those amendments sought to do. For me, this points towards the stampeding through Parliament of measures that are ill thought through and have not been constructed to achieve their purpose. So we should tread cautiously and carefully on every single ground. I cannot believe that any of these things, which are outside the original scope of this Bill, should have been included.

The stated purpose of the Bill, as introduced in another place, was to put back the date by which an election must take place and to require the Secretary of State to report on progress made in establishing a Northern Ireland Executive. With this in mind, and having visited Stormont, I will begin by saying that I believe the Northern Ireland Assembly, when it was functioning, really enriched our politics. Indeed, I do not believe the functioning Assembly was always given the credit it was due. In this respect, I strongly support what my noble friend Lord Bew said earlier.

Consider, for example, the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015. That piece of legislation was Northern Ireland’s equivalent to England and Wales’s Modern Slavery Act, but it gained Royal Assent before the Modern Slavery Bill completed its passage through Parliament. Indeed, some of the precedents it set informed our own debate on the Modern Slavery Bill. I also observe that some academic studies that have compared and contrasted the two pieces of legislation have concluded that the Northern Ireland legislation is, in some respects, rather better.

In saying all this, I am of course aware that the person who introduced this Bill and steered it all the way through the Assembly, as a private Member, is a Member of your Lordships’ House: the noble Lord, Lord Morrow, from whom we heard earlier. That was no mean feat. Of course, it did not become law just because of DUP votes; he worked with parties across the Assembly and gained support for the Bill. I think I am right in saying that Sinn Féin supported it, too. I hope that the Minister recognises that important accomplishments have been made by the Assembly—the fruit of something that enjoyed cross-party, cross-community support. We want more of that, and we can do that only by treading with great care.

I mention this to underline what a huge tragedy it is that the Assembly is suspended. As someone who does not live in Northern Ireland, I wonder whether things might be in a better place today if we had spent more time affirming the Assembly’s considerable accomplishments and less time criticising its politicians. For instance, I cannot understand why a mediator with stature—perhaps someone of the stature of Senator George Mitchell—has not been asked to spend time in Northern Ireland until they are able to find what the parameters of a new agreement might be. This is not an original idea; it has been canvassed in your Lordships’ House from all parts of the Chamber on a number of occasions, and it is about time that we did it.

I, along with many others, have supported and worked for the achievements of the Assembly, and the principles of devolution, for over four decades, during which some 3,600 people died and 48,000 people were injured. The noble Lord, Lord Murphy, achieved more than many of us, and the noble Lord, Lord Trimble, who spoke earlier on, has been properly lauded in many places, not least as a Nobel laureate, for his work in the Northern Ireland peace process and its accomplishments. We must not risk all of those achievements, and we need to consider the ways in which those achievements have been undermined, in some ways, as a result of the way the Bill was changed during the debate in the other place yesterday.

Conversely, while there have been a huge number of challenges facing Northern Ireland, and the noble Lord, Lord Empey, referred to some of those priorities earlier on, conversely, we have a Bill onto which two controversial issues have been placed. Amendments were selected which change the law on matters that were not in the scope of the Bill. If the other place dispenses with the rule about scope, its procedures will become less rules based and more power based, and our politics will be impoverished as a result. Going forward, there seems to be no reason to bother with rules about scope, with any amendment being able to be tabled, regardless of the scope of the Bill. That impoverishes the integrity of this Bill, but it also creates a real headache for the Government in the future, as they must now be ready to contemplate out-of-scope amendments to any Bill that comes forward.

One of the amendments selected yesterday, even though it changes the law in Northern Ireland, was new Clause 10, which requires the creation of regulations to implement the recommendation of a United Nations committee which proposes the decriminalisation of abortion. Regardless of what one thinks about abortion, there is no human right to abortion. The Universal Declaration of Human Rights has 30 articles, none of which suggests that there is a human right to abortion. This is a highly contested question which I will explore in a moment.

We have always treated Northern Ireland not as having to be in uniformity but as being different and having different cultural values. The law on abortion in Northern Ireland, with its distinct traditions and identity, is something about which many people in Northern Ireland hold a very different view from the views of the English metropolitan classes. This was recognised in the 1967 Act by excluding Northern Ireland from its provisions, and Westminster has not sought to legislate in this area since the formation of Northern Ireland in 1921. As recently as 2016, moreover, the democratically elected Northern Ireland Assembly voted not to change its abortion law in any way.

This law is as important to the people of Northern Ireland now as it has been in the past. Last year, after speaking in Belfast and Lisbon, I was privileged to meet a cross-community delegation of women from Northern Ireland, who came to Westminster with a simple message: “Don’t meddle with our law”. In making their case, they highlighted the seminal Both Lives Matter report, which found that 100,000 people are alive in Northern Ireland today who would not have been had they embraced the 1967 Act with the rest of us—an Act which has led, incidentally, to the ending of 9 million lives in Great Britain. That is one every three minutes, 600 every working day. To describe that law as progressive, as has been done from some quarters of your Lordships’ House today, is at the very minimum a contested question. Is it progressive to take the lives of 600 unborn babies every day?

When that report was published, complaints were made about the 100,000 figure, including to the Advertising Standards Authority. To be clear: after a five-month investigation involving health economists, the ASA ruled that 100,000 was a reasonable claim. In that context, we should not wonder that people in Northern Ireland hold their law in high regard, prizing it as a progressive, life-affirming statute of which many of them are proud. Those women who came to Westminster highlighted the ComRes poll that the noble Lord, Lord Morrow, referred to earlier, which shows that 64% of people in Northern Ireland are opposed to Westminster intervening to change its law, rising to 66% of women and 72% of 18 to 32 year-olds. We should tread with care.

One might have assumed that anyone wishing to adjust the law would begin, as a matter of due process, with a public consultation with the people of Northern Ireland. No such consultation has taken place. I note in particular that there is no provision in the Bill to consult each of the individual Members of the Assembly, all duly elected, to establish whether they would be in a majority for changing the law on abortion.

Indeed, the first that anyone in Northern Ireland or anywhere else knew about new Clause 10 was last Thursday morning, when it was published on the Parliament website. Given the rules-based nature of our politics, it was expected not to be selected because it changes the law in relation to a matter that falls outside the scope of the Bill. When Members in another place sought advice from the clerks, they were told that it was out of scope. Thus, despite the knowledge that the democratically elected Northern Ireland Assembly voted in 2016 by a clear majority not to change its law on abortion in any way—a fact that means that of all the UK jurisdictions Northern Ireland abortion law enjoys the most recent democratic sanction within the UK—and despite the fact that there was no public consultation and no warning, yesterday the other place voted to change the law.

To make matters even worse, 100% of those voting to change its laws represented constituencies from outside Northern Ireland and 100% of Northern Ireland Members of Parliament who were present voted against it. How can the British Parliament treat part of the United Kingdom with such utter contempt?

The unseemly haste with which this is being driven through both Houses—this pell-mell rush—feels more appropriate to the sort of emergency powers legislation that blighted Northern Ireland for so long. I was simply amazed to hear it suggested in the Commons that this is being done in the name of unionism. To me, it feels more like ideology-driven colonialism of the worst kind. It is about uniformity, not unionism. I find it hard to conceive of any actions less likely to uphold the union. Since yesterday, I have been contacted by people in Northern Ireland who are resolutely appalled by the way they feel they have been treated.

Yesterday, the House of Commons abandoned something very important by deciding to proceed into this contested territory. This should be a matter for the people of Northern Ireland. It is in all our interests to see the devolved structures restored there; it is not in any of our interests to interfere in the way that we are being invited to do in this Bill as it currently stands.

--- Later in debate ---

[Lord Duncan of Springbank]

That is what I was about to say. Just before I came into this debate today, I was part of a wider meeting with the two Members of Parliament, together with some representatives from the Labour Party. I am going to be very correct by reading out exactly what has happened, so that there is no dubiety about what I am about to say:

“We are actively considering how we can take this matter forward, reflecting as we are upon the wider considerations from the other House, to ensure the amendments are workable, recognising the clear message which we have received from the other place. We need to ensure that we do not end up with defective laws, which would not serve the interests of the people of Northern Ireland”.


We have heard, we will reflect upon that and we will act in accordance with that to ensure that we can deliver what has been passed to us by the other place.

[Lord Alton of Liverpool]

Before the Minister leaves that point, can I return to the point I made in my remarks? If legislation of this kind is being produced in Parliament, surely due process requires that there should be adequate scrutiny before amendments are made before the House of Commons or the House of Lords to be incorporated into legislation? Also, if these amendments, which were known about only as recently as last Thursday, are defective, why is it now the Government’s job to sort that out, when these were not government proposals in the first place?

[Lord Duncan of Springbank]

The thing to note is that these have now been voted on by the other place in a significant number. The majority is there. They will move forward in this way. We in this House cannot look to the other place and seek to undermine or strip out these particular parts; that would be a mistake of some significance.

Northern Ireland (Executive Formation and Exercise of Functions) Bill

Lord Alton of Liverpool Excerpts

2nd reading (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

[Lord Alton of Liverpool (CB)]

My Lords, in March 1979, four days after Airey Neave was brutally murdered in the precincts of Parliament, I made my maiden speech in the House of Commons. I reflected on the need to find political solutions to the endless cycle of violence in Northern Ireland. During the years that followed, I served as a spokesman on Irish affairs. In 1985 I was appointed by the noble Lord, Lord Steel, to be a member of the commission that served under the chairmanship of the late Lord Donaldson of Kingsbridge, which produced the report What Future for Northern Ireland? Our commission concluded that progress could be made if, instead of encamped and embedded hostility to the other community, the respectful place of both traditions in a devolved power-sharing institution could be recognised. While endless legislation was rushed through as emergency legislation, none of it addressed the fundamental issue.

Eight years later, on 20 March 1993, the shocking waste of innocent life was underlined when a bomb was left in a litter bin in a shopping area of Warrington. Two children, three year-old Johnathan Ball and 12 year-old Tim Parry, were murdered. As I stood with John Major at their funeral, it was clear that the finest memorial to those boys would be renewed efforts to end a conflict which, over 30 years, claimed 3,600 lives, injured and maimed thousands more, and left countless lives scarred and disfigured in the way that my noble and right reverend friend Lord Eames described earlier.

The Downing Street declaration of December 1993 paved the way for the Good Friday agreement, signed on 10 April 1998. The painstaking and patient work of a succession of Secretaries of State, some of whom have been in your Lordships’ Chamber this afternoon, the statesmanship of men like John Hume and the noble Lord, Lord Trimble, and ultimately the willingness of the Reverend Ian Paisley and Martin McGuinness to make devolution work, set aside the forced choice between British and Irish identities, with two tribes looking out at one another in enmity and hate—all gains alluded to by the noble Lord, Lord Dunlop, in his moving speech.

I hold both an Irish and a British passport, as do my children. In two world wars, my grandfather and father fought in the British Army, and an uncle died in the Royal Air Force. My mother was a native Irish speaker. Her family suffered extreme poverty in an area where Irish nationalism and republicanism had been nurtured by famine in one century and brutality in the next. So, more than most, I have always had to hold in tension a love of both traditions. From both sides of my family I was taught to abjure violence and to uphold the sanctity of every human life. I am troubled to see the gains of those years now at risk. Here we are again, rushing legislation through this House in 24 hours flat, with the House of Commons having done the same.

I was struck—it has not been referred to yet—by the report of the Select Committee on the Constitution of your Lordships’ House, published only yesterday. It stated:

“We question whether the speed at which the Government wishes to pass this Bill is necessary … more time (even with a fast-track timetable) could have been made available for parliamentary scrutiny of this Bill”—


which is surely our job. It continues:

“We emphasise that in any other circumstances provisions such as these which challenge established constitutional principles would not be acceptable”.


That brings me to Clause 4, which the noble Lord, Lord Browne of Belmont, just referred to, as did other noble Lords. It purports to provide guidance to members of the Civil Service in Northern Ireland in relation to the repeal of Sections 58 and 59 of the Offences Against the Person Act 1861: namely, the provisions banning abortion—the deliberate ending of the life of a child in the womb. This is a serious issue. This is the law of this land. “Procuring miscarriage” is an offence unless two doctors agree that one of the defences set out in the Abortion Act 1967 applies. So how can the Secretary of State issue guidance to another jurisdiction advising on the repeal of legislation that is current law in her own jurisdiction? As the noble Lord, Lord Empey, said earlier, this is smoke and mirrors—and, as the noble and learned Baroness, Lady Butler-Sloss, said, it makes a nonsense. This is an absurdity, and on this point alone these ill-thought-through amendments ought to be dismissed.

In the mid-1990s, I accompanied a cross-community delegation of Members of Parliament—from the Social Democratic and Labour Party, the Official Unionist Party and the Democratic Unionist Party—to see John Major. We were given his assurance that he and the Conservative Government would insist that abortion would remain a matter to be settled in Northern Ireland. It troubles me that Clause 4 seeks to unsettle that agreement. In a Bill of such a limited and temporary nature, how can anyone reasonably suggest that an issue as contentious and sensitive as abortion should even be included for consideration?

In the Commons, the amendments that were introduced came at such short notice that many MPs did not even know that the House would divide. Karen Bradley, the Secretary of State, was right when she said that if the amendments were passed, which they were, it would put the Northern Ireland Civil Service in “an impossible position”. She went on to say that,

“the Bill cannot force Northern Ireland Departments to change the law”,

as the new clause seeks to do—a point made by the noble and learned Lord, Lord Mackay of Clashfern, in his remarks earlier. The Secretary of State said:

“It would be totally contrary to the rule of law and the way the independence of the civil service across the whole United Kingdom operates”.—[Official Report, Commons, 24/10/18; col. 385.]


In March of this year, 47 Members of this House, including former Cabinet Ministers, co-signed a letter to the Secretary of State for Northern Ireland noting that legislation from Westminster would severely destabilise the devolution agreement. The Prime Minister says it would not be right for the United Kingdom Government to undermine the settlement agreement.

We have heard many references during the debate to things such as human rights. In December we will celebrate the 70th anniversary of the Universal Declaration of Human Rights, which says that everyone has the right to life. There is no right to abortion in human rights law: let us be clear about that. Nowhere does the Universal Declaration of Human Rights refer to abortion being a human rights question.

There will be a chance to return to these issues in Committee, but let me conclude. Noble Lords do not have to agree with my substantive opposition to the taking of the life of a child in the womb, up to and even during birth in the case of a child with a disability—which results, in Great Britain, in one abortion every three minutes, or around 40 in the two hours that we have been debating this Bill so far, or some 9 million since 1967—or my noting that if that legislation had applied in Northern Ireland, 100,000 people would not be alive today who were born because the legislation does not apply there. Noble Lords do not have to agree with my view about this to be concerned about the provisions in this Bill. As parliamentarians, we have a duty to pass laws that make sense, a duty to uphold the principles of subsidiarity, a duty to resist the making of laws on the hoof, a duty to insist on proper scrutiny and debate, a duty to contest ideology and sloganeering, and a duty to respect the people of Northern Ireland.

Northern Ireland (Executive Formation and Exercise of Functions) Bill

Lord Alton of Liverpool Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

[Lord Adonis]

My Lords, that in no way invalidates the findings. Those figures are from a poll; they do not represent Amnesty’s own view. A Sky News poll earlier this year found that 76% of people in Northern Ireland support an equal marriage law, and also wish this Parliament to carry such a law if it is not carried in Northern Ireland. I state all this because this is the situation as I see it. My own view is that we are not standing by the people of Northern Ireland in guaranteeing these basic rights at the moment. If I was the responsible Minister, I would think very seriously about seeking to change the law now, but, because of the great respect that I have for the devolution settlement and the Good Friday agreement, it is right that we should allow one last opportunity for the devolved institutions of Northern Ireland to resolve these issues of fundamental rights. If they are unable to resolve them, I do not believe that there is any realistic alternative to this Parliament doing so at some early date.

[Lord Alton of Liverpool (CB)]

I do not know whether the noble Lord was present earlier to hear the noble Baroness, Lady Stroud, challenge the poll to which he referred. I draw his attention to the ComRes poll that was carried out only last week in Northern Ireland. It found that 64% of the general population and 66% of women in Northern Ireland agreed that changing the law on this issue should be a decision for the people of Northern Ireland and their elected representatives. It also found that 70% of 18 to 30 year-olds agreed that Westminster should not dictate that change to them.

[Baroness Barker (LD)]

Will the noble Lord, Lord Alton, say who commissioned the poll from ComRes and make available the questions so that the House can see them?

Prisons: Women

Lord Alton of Liverpool Excerpts

Tuesday 3rd July 2018 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble Baroness. One has to bear in mind that there are instances in which custody is the only appropriate resolution, even in the case of women offenders, but of course we want to minimise that. At the moment, we have brought down the female prison population from a high during the Labour Government of 5.4% to a current figure of 4.6%. We appreciate that a large proportion of them are serving short custodial sentences. The figures I have indicate that in 2017, 72% of custodial sentences for women were six months or less, and that is an issue that we do wish to address.

[Lord Alton of Liverpool (CB)]

My Lords, will the Minister reflect for a moment on why the number of community sentences given to women has fallen by half over the last decade? Will he reflect also on the level of mental health issues among women? They are said to be five times more likely among women in prisons than in the general population.

[Lord Keen of Elie]

My Lords, there are issues that arise more frequently and more obviously among female offenders. Indeed, to quote just a few of the figures, 60% of female offenders who have an assessment have experienced domestic violence, while drug misuse is identified in about 40% of cases and alcohol misuse in about 25%. These issues therefore arise more particularly within the female cohort of offenders. With regard to community orders, it is part of our task to reinvigorate their use, which will involve us in persuading the courts at all levels of the practicality and effectiveness of such sentences.

HMP Liverpool

Lord Alton of Liverpool Excerpts

Thursday 21st December 2017 Lords Chamber

[Lord Keen of Elie]

My Lords, very troubling matters were raised by the report, but I am not going to comment on the contents of a leaked report. What I can say is that the inspector debriefed the Prison Service immediately after and we have responded to that. Her Majesty’s Prison Liverpool was originally a Victorian prison, and there are indeed real issues with the standard of cell accommodation. It is worth noting that no expenditure—not one pound—has been spent on cell accommodation at Liverpool since 1994. In the intervening period, there was a Labour Government from 1997 to 2010.

[Lord Alton of Liverpool (CB)]

My Lords, is not one of the most disturbing aspects of this troubling report the failure to respond to the mental health needs of inmates? Given the reported suicides or deaths of perhaps as many as three prisoners in recent weeks, and the absence of secondary screening, is not this a national requirement? How do these squalid conditions, in a prison overrun with rats and cockroaches, meet Churchill’s famous dictum that the treatment of criminals is,

“one of the most unfailing tests of a civilisation of any country”?

How does it encourage fundamental reform of those we have incarcerated?

[Lord Keen of Elie]

My Lords, where the courts impose a custodial sentence, the punishment is deprivation of liberty. But where someone is kept in custody, the conditions should be decent, safe and secure. We accept that as a Government.