Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Bishop of Chelmsford and Baroness Lister of Burtersett

Committee stage
Wednesday 14th February 2024 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

I am sorry, but I was only quoting—I know it was a majority vote and that the noble Lord did not vote for this bit—from the Joint Committee on Human Rights report, which still stands, even though it was a majority vote for that particular paragraph. Perhaps I will leave it to the lawyers, if I have not quite got the legal point.

The Constitution Committee comments that disapplication of HRA provisions is of “considerable constitutional concern”, and invites us to

“consider the potential consequences of undermining the universal application of human rights”.

The UNHCR expresses its deep concern at the exclusion of asylum seekers from some of the human rights protections, not only because it

“undermines the universality of human rights”

but because of its

“implications for the rule of law both domestically and internationally”,

setting

“an acutely troubling precedent”.

Universality means all humans, regardless of their immigration status. In the words of the Universal Declaration of Human Rights, universality principles stem from recognition of the

“inherent dignity and of the equal and inalienable rights of all members”—

all members—

“of the human family”.

As I said at Second Reading, breaching this principle speaks volumes as to how the Government see asylum seekers, for they are, in effect, being treated as less than human.

I make no apology for repeating these points from Second Reading, because even though a number of noble Lords raised their disquiet about the disapplication of the Human Rights Act, the Minister, the noble Lord, Lord Sharpe, did not address our concerns in his closing speech or his subsequent letter to Peers.

The closest the Minister came in the debate was perhaps to do so implicitly, when he dismissed in a peremptory manner the advice of the Northern Ireland Human Rights Commission, which was established under the Northern Ireland Act 1998 to

“review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights”.

When challenged by the noble Baroness, Lady O’Loan, who is no longer in her place, as to whether he had actually read the commission’s advice, he responded that

“the Government take a different view to those opinions”.—[Official Report, 29/1/24; col. 1099.]

The commission’s opinion, which is perhaps better described as formal advice, concludes that the Bill

“does not consider the Belfast (Good Friday) Agreement, and the integral role of both the Human Rights Act and ECHR in the complex fabric of the NI Peace Process and devolution”.

Indeed, it warns that it

“appears to be incompatible with obligations under the … Agreement”.

That position is echoed by the Human Rights Consortium in Northern Ireland. In its view, these proposals

“represent a violation of the Belfast/Good Friday Agreement by effectively limiting access to the Human Rights Act … for those seeking refuge in Northern Ireland. They also represent a violation of the Article 2 commitments of the Windsor Framework by undermining the commitment to the non-diminution of rights contained within the ‘Rights, Safeguards and Equality of Opportunity’ section of the Belfast/Good Friday Agreement—a section which explicitly guaranteed our access to the rights protected in the Human Rights Act”.

The JCHR saw these concerns as “serious” and, by a majority, reported that

“The Government has not adequately explained why it considers those concerns are not merited”.


It therefore asks for

“a full explanation of why it”—

the Government—

“considers the Bill to be consistent with the Windsor Framework and Good Friday Agreement before … . Report stage”.

I am not quite sure which Minister will be responding, but will the noble and learned Lord undertake to provide such an explanation? Can he please explain why we should put more faith in the Government’s interpretation of the implications for the Belfast/Good Friday agreement than those of both official and unofficial human rights watchdogs in Northern Ireland? That is all the more so given the Constitution Committee’s invitation to us

“to pay particular attention to the constitutional consequences … for the Good Friday Agreement”,

and the questions that it raises about the compatibility of Clause 3 with ECHR rights. I know that the question of Northern Ireland came up late on Monday, but it was from a rather different perspective.

Finally, more generally, can the Minister tell us what he thinks the universality of human rights actually means? What is the Government’s justification for breaching this fundamental tenet of human rights?

[The Lord Bishop of Chelmsford]

My Lords, I support Amendment 33 from the noble Lord, Lord Kirkhope of Harrogate, to which I am a signatory. I am grateful to the noble Lord for the amendment and I welcome the opportunity to discuss the role of Parliament if a higher court were to declare this legislation to be incompatible with the convention right, or indeed a number of rights.

We should not forget that the Government have been unable to make a statement in the Bill that it is compatible with convention rights. As the Government nevertheless wish Parliament to proceed with the Bill, it seems prudent to probe what the role of Parliament would be in determining how any potential incompatibility should be addressed. In fact, the Attorney-General has said in the Government’s own legal position paper that it should be for Parliament to address any determination of incompatibility by the courts. The noble Lord, Lord Kirkhope, has eloquently set out the motivation for this amendment, and I agree that what it does is simply to expound what parliamentary sovereignty would look like in this context.

I appreciate that the Government believe that there is no basis for a declaration of incompatibility, and that therefore Section 4 of the Human Rights Act has not been disapplied. However, if Parliament proceeds to pass the Bill on the basis of this view, but the domestic courts declare otherwise, can the Minister say what objection there can be for giving Parliament a clear opportunity to revisit this issue? Surely the Government and Members across all Benches agree that parliamentary sovereignty includes the legislative function’s ability to oversee the executive function. As the legal position paper reads:

“The principle that Parliament should be able to address any determination by the courts of incompatibility, rather than primary legislation being quashed by the courts, is part of the fundamental basis of Parliamentary sovereignty”.


The Human Rights Act does not compel the Government or Parliament to remedy an incompatibility, but Parliament must be able to take steps to do so. It is not unreasonable to expect Ministers to explain—and to explain without delay—why they may not be bringing forward a remedial order. If the Minister disagrees with this supposition, can I ask him to please make clear the Government’s position?

Your Lordships will know that we have spoken with one voice on these Benches, as we believe that the Rwandan partnership agreement is an abdication of both our legal and our moral responsibility to refugees seeking sanctuary here in the UK. It is highly disturbing that this Bill implies that human rights are somewhat discretionary, somehow no longer universal, and that they can be disapplied for those reasons outlined in domestic law.

The fundamental truth that I believe in is that every person is equally deserving of rights, as every person is equally made in the image of God. However, this is not just a theological statement but also an indisputable legal principle that underpins our international human rights framework: that all are equal before the law. Noble Lords will know that I am not a lawyer, but this point was very well made by the noble Baroness, Lady Chakrabarti. She made it powerfully, better than I could do. Removing asylum seekers from certain protections enshrined by the Human Rights Act severely undermines the universality of human rights and our collective access to justice. As the refugee convention states, protection is not a simple concession made to the refugee; he is not an object of assistance but rather a subject of rights and duties.

Human rights are not an opt-in or opt-out concept, and Section 4 of the Human Rights Act gives the courts the opportunity to remind us of that. This is surely central to the UK’s commitment to the rule of law. Parliament has the right to create law, but our authority cannot extend to creating injustices. Parliament therefore may need to ask whether we should maintain parliamentary consent if the Bill is found to not afford adequate protection of fundamental human rights, and Amendment 33 facilitates this. It is a perilous time for the protection of human rights across the globe, and the UK’s contribution should not be to diminish their value or put them further out of reach for some of the world’s most vulnerable people. I hope and pray, therefore, that we have the chance to revisit the proposals in the Bill.

Illegal Migration Bill

Debate between Lord Bishop of Chelmsford and Baroness Lister of Burtersett

Report stage
Wednesday 28th June 2023 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I will make two brief points in support of Amendment 14. Before that I repeat the question I posed earlier: where is the child rights impact assessment that we were promised? It is now Report, and we really ought to have it.

My first point is that, in Committee, I quoted from the previous Lords Minister and from Home Office guidance that unaccompanied young children are

“not suitable for the inadmissibility processes”.

I asked the Minister to explain why, given these recent statements, they are considered suitable now, and on what evidence this policy volte-face is based. I did not get a reply, so I would welcome one now, please.

Secondly, last week, I attended Barnardo’s launch of its report A Warm Welcome: A Blueprint for Supporting Displaced Children Seeking Protection in the UK. We were given a booklet about a comic book for children seeking safety, co-designed by children and young people with lived experience of the asylum journey. It ended with a letter to the children who follow in their footsteps, which said:

“I know when you came to the UK you had a difficult time. I know this because I did too. So don’t worry, everything is going to be ok … You have been through a difficult time but you are safe now … You can forget the past because you are safe and you can look to the future and start your life here”.


I was close to tears reading this poignant letter because, if the Bill goes through in its present form, the children who follow will no longer be able to start a life here. The booklet was called Journeys of Hope; the Bill destroys that hope. This amendment would at least give back some hope to unaccompanied children who reach the UK through irregular routes.

[The Lord Bishop of Chelmsford]

My Lords, I support both amendments in this group, but I am particularly pleased to be able to speak in support of Amendment 14, to which my right reverend friend the Bishop of Durham is a co-signatory, although he is unable to be present today.

The Bill will prevent potentially thousands of children ever claiming refugee protection in the UK, however serious their protection needs may be and, disturbingly, regardless of the fact that they may not have had any say in the decision to travel here irregularly. Let us be absolutely clear: this means that vulnerable unaccompanied children who have fled unimaginable horrors will arrive to find that they will be detained and then potentially accommodated by the Home Office outside the established care system. All of this is not in order for their asylum cases to be heard and assessed but simply to deter others.

Given that no return agreements are yet in place, and that the Government have not provided any new information about how returns will exponentially increase, the overwhelming majority of individuals will be left to languish in perpetual legal limbo, as we have heard, and financial precarity. I argue that this is unacceptable for any asylum seeker, but for an unaccompanied child it is simply unforgivable.

Last year, close to nine out of 10 separated children were granted refugee status. Some 99% of unaccompanied children arriving from Afghanistan and Eritrea were granted status. It is these children—those with a genuine need for protection—who will be left outside the asylum system unless the Government change course.

Children’s development is intrinsically linked to secure attachment and safety, but the state is choosing to prescribe for them an uncertain and harmful future. This is counter to the Home Secretary’s duty to safeguard and promote the welfare of all children and to prevent punishment of a child on the basis of status or the activities of their parents, as obligated by both domestic and international law.

The amendment would grant re-entry to the asylum system for those separated children the Secretary of State is unable to remove. It is a pragmatic measure that would go some way towards protecting children from these adverse impacts, which are neither tolerable nor justifiable. I urge the Minister to relent on these amendments.

Illegal Migration Bill

Debate between Lord Bishop of Chelmsford and Baroness Lister of Burtersett

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

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

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

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

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

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

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

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

The Home Secretary has argued that the Bill’s critics

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

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

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

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

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

[The Lord Bishop of Chelmsford]

My Lords, I do not wish to delay the House for long, especially given the excellent speeches we have already heard delivered on this group, but I support the comments of the noble Lord, Lord Carlile, and the noble Baroness, Lady Chakrabarti, about retrospection. I add my support, in particular, to the noble Lord, Lord Coaker, and those other noble Lords who have tabled Amendment 11, on which we have already heard the comments of the noble Baroness, Lady Hamwee, and the noble and learned Baroness, Lady Butler-Sloss.

A succession of migration, public order and modern slavery Bills in recent years have drastically raised the length of sentences and the severity of punishments that can be brought to bear on people traffickers and smugglers. While this may look tough, it is difficult to say that it has had much impact; indeed, the entire purpose of this Bill is to try to put a stop to arrivals which have not, apparently, been impacted on at all by the deterrents that are already in place. Nor is this surprising, given the very low number of prosecutions and convictions for such offences. Regrettably, it seems that smuggling is a crime with enormous rewards but relatively little risk for the perpetrators. Instead, we seem to almost exclusively punish those who are smuggled, often in highly dangerous circumstances.

We know that securing prosecutions and convictions is incredibly difficult because it requires the willing co-operation of those who have been smuggled. This is no small thing, for they are often traumatised and often in significant debt to the smugglers. They may have friends and family abroad or here in the UK who will be put at risk if they come forward. That difficulty is only exacerbated by our migration enforcement policies, which also deter victims from coming forward for fear of the hostile environment, detention and removal—including potentially to Rwanda or some other third country with which they have no connection. There is little incentive to co-operate with law enforcement, and significant risk in doing so.

My fear is that the Bill as a whole will not improve this situation, but at the very least, Amendment 11 provides a modest mitigation of the damage, without undermining the effect of the Bill overall, by exempting those co-operating with law enforcement from the prospect of removal. I hope that Ministers will listen to this, or at the very least come back with detailed proposals for how victims, both of smuggling and of trafficking, slavery and other forms of abuse, can be better supported to co-operate and help bring down those who have abused them.