Investigatory Powers (Amendment) Bill [HL]

Lord Carlile of Berriew Excerpts

2nd reading
Monday 20th November 2023 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, stimulation comes in many forms, so I think I can say, without any disingenuousness, that it is stimulating to follow the noble Baroness, Lady Bennett. Having heard her and the noble Lord, Lord Strasburger, I feel that I should start with a bit of my own experience, that of dealing with those extraordinary and usually highly intelligent people who work in the various security services. It is outrageous to assume that they would look into an individual’s credit card transactions or anything like that in the way that has been implied by at least two speeches that we have heard. I believe—indeed, I know—that their contributions have been key to the introduction of this Bill and that they have done it with intellectual integrity and with only one thing in their mind: the interests of their country, in which they live. Listening to the noble Baroness, I have a fear that she and I, at least in our minds, live in completely different countries.

The noble Lord, Lord Strasburger, expressed some extraordinary conspiracy theories which just do not exist and which, in my judgment, are—I hesitate to use the word, but I will—misleading. Both the speakers to whom I have referred have been on a safari into irrelevant issues which are not pertinent to the reality of what we are discussing. In the years since 9/11, the date on which I became the Independent Reviewer of Terrorism Legislation—to be succeeded some years later by the brilliance of the noble Lord, Lord Anderson of Ipswich—various Governments all over the world have been challenged repeatedly by both evolving change and unexpected events affecting the terrorist threat landscape.

I suggest that the amount of legislation we have had since 9/11 has reached the point at which the Government should give consideration to a consolidation Bill, a codification in which all counterterrorism, interception and counterextremism legislation is included so that we have a living instrument to which lawyers, police officers, the security services and, of course, parliamentarians concerned can refer—a single place in which all this legislation is kept. This Bill is an example in some parts of the way in which extra legislation is being added piecemeal, although it is fair to say that legislation.gov.uk at least tries to include in Bills, if looked up online, the additional parts that have been created. It really is a time for codification, and the template for that is the Sentencing Code, which was created by Professor Ormerod when he was at the Law Commission.

I used the phrase “terrorism threat landscape” deliberately. Terrorism and related forms of extremism have morphed into one of the major and enduring geopolitical issues. It started with the word “terrorism”, but, since 9/11, these issues have become part of the defence and national security policies in every single country, including our own. It was a surprise when national security originally appeared as part of the defence strategy, but it is now completely established in that context.

Attempts to disrupt the stability of sovereign Governments, sovereign Governments themselves disrupting other Governments and the rise of new international factions are all matters that affect our debate; we have to understand the context of what we are considering. I thank the Minister for ensuring that your Lordships have been fully informed and have been given plenty of time; this has been a matter of discussion for a long time. My noble friend Lord Anderson reported some time ago on the background and primary considerations behind the Bill; I too add my special thanks to him for his excellent, detailed report, which is the foundation of the Bill.

Let us consider the context. The first responsibility of our Government is to keep their citizens safe and free to go about their legitimate business and interests. When we go to a concert, as in Manchester, for example, or to a shopping centre, again, as in Manchester, or come and go to this Parliament, along the streets outside without disturbance, which has not been everyone’s experience in recent days, we should be kept as free and safe from the terrorism threat as is possible within the legitimate constraints we set ourselves as a free society. That does not mean that we should resile for one minute from what we rightly regard as fundamental freedoms, but how fundamental those freedoms are is open to argument based on the assessment of proportionality that was mentioned earlier.

In that context—specifically in connection with bulk data, a major part of the Bill—we need to be realistic. In the years since some of us first handled house brick-sized mobile telephones that slotted into racks in our cars—at the time, I was a Member of the other place—we have ourselves given away, to a wide audience, private matters that, in the past, were closely protected. When we—the middle-aged and older men here, for example—buy clothes online, we give away details of our anatomy, including our shoe and waist sizes. That the security services have any interest in that sort of thing is a myth, but we have given away a huge amount of our information. To allow the state to use that information to catch terrorists seems to me to be a reasonable balance, if that use is circumscribed by the high level of judicial protection that the Bill provides and, in some respects, enhances.

When we speak about bulk data, we should bear in the mind the donation we have made of information, sometimes our most intimate details, and we should reflect on the public interest in allowing the authorities, subject to the protections built into the Bill, to use that bulk data—even the meta data that tells them when we made our calls and to whom, and from whom, they have occurred—to carry out their prime duty to protect the public. Maybe, from time to time, there will be people whose information has been mistakenly or improperly prepared, but they are provided, in this country and in this Bill, with greater legal protections than in any other country that I know.

This is an appropriate and good Bill. The Committee should not be distracted by mythology; it should seek to make the Bill better—but within its existing context.

Illegal Migration Bill

Lord Carlile of Berriew Excerpts

Consideration of Commons amendments
Wednesday 12th July 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

My Lords, with the leave of the House, I will speak also to Motions F and G.

Motion B deals with the retrospective application of the duty to make arrangements for removal. We have reflected on the arguments put forward on this issue by the noble Lord, Lord Carlile, on Report. We have brought forward Amendments 22A and 22Q in lieu. Noble Lords will recall that the Lords amendments sought to move the operative date of the Clause 2 duty from 7 March this year to the date of that clause’s commencement. We believe that such a change carries a significant risk of there being a surge in channel crossings—a fire sale, if you will—as we approach the commencement date. To guard against this, the amendments in lieu instead provide for the duty to remove to apply to a person who enters the United Kingdom unlawfully from the date of this Bill’s Royal Assent.

We will keep this under review ahead of the Bill’s implementation, as we have included a reserve power to change the new operative date by regulations. This could, for example, enable us to focus the initial implementation of the Bill on those who arrived here illegally via small boats rather than by other means. I should stress that the 7 March date will continue to apply for the purpose of the power conferred on the Secretary of State to provide accommodation for unaccompanied children and for the purpose of the ban on re-entry, settlement and citizenship. I trust that this compromise approach will meet with the approval of the noble Lord, Lord Carlile.

Motion F relates to Lords Amendment 9, moved on Report by the noble Lord, Lord German. This relates to the issue of the inadmissibility of asylum and human rights claims within the UK system. It remains the Government’s contention that declaring such claims to be admissible is a core part of the scheme provided for in the Bill. The Court of Appeal unanimously confirmed that removing asylum seekers to a safe country for their asylum claims to be processed is entirely consistent with the refugee convention, including Article 31—a point that I mentioned a moment ago. This amendment would simply encourage people to game the system, drawing things out in an attempt to reach a six-month cut-off date. This amendment was rejected by the Commons by a strong majority of 76. Given that, I hope that the noble Lord, Lord German, will be content to agree to Motion F.

Finally, Motion G relates to Lords Amendment 23, put forward by the noble and learned Lord, Lord Etherton. The United Kingdom is a stout defender of LGBT communities across the globe. Our commitment to this cause remains unwavering. So, although I understand and sympathise with the noble and learned Lord’s desire to protect LGBT people who would face persecution were they to be sent to one of the countries listed in the amendment, I remain strongly of the view that the amendment is unnecessary as the Bill already delivers the protections that he seeks.

We are committed to the principle of non-refoulement, as a Jamaican national who makes a protection claim will not be returned to Jamaica. Were they to be fearful of being at real risk of suffering serious and irreversible harm, and were they to be removed to a specified third country, they would be able to make a serious harm suspensive claim. As I have previously indicated, in considering such a claim, the principles enunciated by the Supreme Court in the case of HJ (Iran) would be applied such that if the open expression of a person’s sexual orientation would prevent them from living in the specified third country without being at real risk of serious and irreversible harm, they would meet the threshold for a serious harm suspensive claim.

I hope the noble and learned Lord has been able to reflect on my assurances and on the outcome of the vote yesterday in the other place, and that he now feels able to support Motion G. I beg to move.

Motion B1 (as an amendment to Motion B)

[Lord Carlile of Berriew]

Moved by

At end insert “, and do propose Amendment 22R as an amendment to Amendment 22B—

22R: After subsection (1) insert—“(1A) Regulations under subsection (1) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.””

[Lord Carlile of Berriew (CB)]

My Lords, I hope I will be allowed a moment when referring to my Motion B1 and Amendment 22R on page 5 of the Marshalled List to pay a very short tribute to the staff of the Public Bill Office. I was treated very kindly by a very tolerant member of staff there when I was being completely dysfunctional late last night and early this morning. They have been put under enormous pressure, and I think we should appreciate that. It may have felt to them like bullying, I am afraid.

I do not know why we have been forced to consider these amendments today, or indeed before the Summer Recess. The very earliest this Bill could ever be used would be after the Supreme Court decision in October, or whenever that is given; we do not know the exact date. Indeed, that may not be the end of the litigation in any event. I do not understand why we were not left to consider this in the sittings in September. I hope we will not be put in this position again.

I now turn to my Motion. This is where I express my genuine gratitude to the Government—to the Minister and others, including the Chief Whip—because they have made, in my view, a correct and noble concession to the objections that this House voted for in an amendment I moved on retrospectivity, pointing out as I did at the time that retrospectivity, though not a “never”, is frowned on in our law.

My Motion on page 5 of the Marshalled List—which I will not test the opinion of the House on tonight—mitigates the rigour of the exception that has been created in the Government’s amendments. They say they have abandoned retrospectivity, to put it crudely, but they have retained a regulatory power to abandon retrospectivity. I am not going to force the issue tonight, but I ask the Government to reflect on the constitutionality of that approach, because it makes me feel decidedly uncomfortable. I do not want to dilute my thanks for the acceptance in principle of what I moved a few days ago.

[Lord German (LD)]

My Lords, I draw attention to my interests as laid out in the register. These Benches are supportive of the discomfiture, which the noble Lord, Lord Carlile of Berriew, just referred to, to find that eventual clarification. We also support Motion G1 in this group.

My Motion F1 would mean that if an individual has been made inadmissible under this legislation and has not been removed to a safe country after six months, their claim will be processed within the UK system. The Ministers in both Chambers, in response to my amendment at an earlier stage, said—it has been repeated here—that people might game the system or that it would incentivise people to make spurious claims so as to extend their time in the United Kingdom in order to reach the magic six months.

In response to this concern, the current form of Motion F1 would pause the calculation of six months during any suspensive claim as set out in the Bill. It is also important to be mindful that the Bill in itself is claimed by Ministers to prevent people from making last-minute legal challenges to stop removals. My Motion totally disincentivises people from making spurious claims.

The Minister in the other place said that my earlier amendment would undermine the Bill. It does not. It would simply provide a backstop that protects the taxpayers of this country from indefinitely supporting people existing in the UK in limbo.

The Government’s own impact assessment on the Bill assumes that people will be detained for 40 days before removal. In this Chamber, we have heard constantly from the Minister that it will be not months but weeks or days when people are removed. On that basis, the ability to make a claim after six months should not be a problem, because it is totally in line with the Government’s expectations of their very own Bill.

Without this amendment, the Home Secretary is setting herself up for an extremely challenging time. There will be no way of resolving the foreseeable challenge of not having anywhere to remove people who arrive in the United Kingdom on irregular routes. Whether that is resolved in the future, the Government express the desire that they will be able to make this happen. If you believe, in the Government’s own words, that the Bill can be “workable”, then it is entirely financially prudent for us in this Chamber to try and insist that, in the current climate, the Government should be prudent with their spending of the public purse in using taxpayers’ money to support people indefinitely and without a returns agreement—because six months will have passed.

In addition to the financial considerations, it does not seem to me to be particularly in line with a Conservative mindset to enforce that people remain in the United Kingdom without being able to contribute, use their skills or participate in society. If these people cannot be removed after a reasonable amount of time, their claim should be processed, so that they either get on with their lives in the United Kingdom or be removed to their country of origin.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I congratulate the noble Lord, Lord Carlile, on getting a concession from the Government and understand the point he made with his Motion, which I understand he will not move. I am pleased that it has been accommodated.

The noble Lord, Lord German, explained his amendment extremely well; it provides a backstop for the taxpayer to stop people going into legal limbo, being a burden on the taxpayer indefinitely and getting into the grey area which so many in this situation are in right now. As he said, it is totally in line with the Government’s expectations of the Bill, so if the noble Lord chooses to press his Motion F1 then we will support it.

My noble friend Lord Cashman summed up the support for Motion G1, in the name of the noble and learned Lord, Lord Etherton. If he chooses to move it, we will support him. As my noble friend said, it reinforces the principle of protection for LGBT people. In the words of the noble and learned Lord, Schedule 1 should not provide a veneer of respectability to certain countries that are currently on it, so we would support him.

[Lord Carlile of Berriew (CB)]

My Lords, as I indicated earlier, I ask the Government to consider leaving to Parliament the final decision on any regulations reintroducing retrospectivity. That said, for the reasons I gave earlier, I beg leave to withdraw Motion B1.

Motion B1 withdrawn.

Illegal Migration Bill

Lord Carlile of Berriew Excerpts

3rd reading
Monday 10th July 2023 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I very much echo what the noble Lord, Lord Cormack, has just said. I want to draw attention to the fact that the last-minute publication of the child rights impact assessment, which required the intervention of my noble friend Lord Kennedy of Southwark, meant that we were unable to pay due attention to it during the Bill’s passage—despite children being among the Bill’s main victims. Therefore, I will say a few words now.

The UN Convention on the Rights of the Child makes clear that a child rights impact assessment should be built in

“as early as possible in the development of policy”.

The fact that it arrived so late and reads more like a repetitive post hoc justification of the Bill’s measures than a serious analysis of their implications for the rights and best interests of the child suggests that it was not. Noble Lords from across this House and the Children’s Commissioner have called for the assessment since the Bill’s introduction. The commissioner has now made clear that the assessment “does not allay” her

“concerns about the impact of this Bill on children”.

With particular reference to detention and the use of force, she notes that it

“relies on overly optimistic assumptions about what might come to pass to reach conclusions about the positive effect on children, while ignoring or overlooking the clear, evidenced and tangible negative impacts it will have”.

While the Home Office’s use of the DfE template is welcome, it serves to expose the lack of evidence to support its assessment of the impact on children’s rights and its failure to consult externally. From the perspective of process and outcome this is a travesty of a child rights impact assessment. I hope that we remember that when it comes to the process of ping-pong on amendments affecting children.

[Lord Carlile of Berriew (CB)]

From these Benches, I echo the remarks made by the Minister about our late and lamented noble and learned friend Lord Brown, who is sorely missed and who was often an inspiration to us all, even when we did not entirely agree with him, because he always inspired conceptual thinking.

I thank the Minister—and I do mean this by the way—for his patience while under fire, even though I mostly disagreed with his responses when they came. However, behind and underneath that carapace of patience has been a failure to understand that the Government set out to do something that is neither possible nor legal. We were told that the Bill would stop the boats as a deterrent. However, we know that the boats were fuller than ever in June. We were told that sending asylum seekers and refugees to Rwanda would be a deterrent. However, sending them to Rwanda is illegal—I use the word advisedly—under the laws of this country, at least until the matter has been relitigated in the Supreme Court. In the Minister’s consultations with the Home Secretary, the Government should give serious consideration to pausing this Bill until that hearing has taken place. It seems extraordinary to me, as a long-time parliamentarian in both Houses, for this Parliament to be asked to pass a Bill which requires something unlawful to be done. I have a basic opposition to that.

I will say one other thing. Some of us are already receiving messages from various well-informed members of the media about changes the Government intend to make to this Bill. It would be helpful if we were informed at approximately the same time as the media so that we can make a considered judgment as to what we do during ping-pong and so that we can carry out the role which, I believe, we have performed effectively hitherto.

National Security Bill

Lord Carlile of Berriew Excerpts

Consideration of Commons amendments
Tuesday 4th July 2023 Lords Chamber

Finally, I will address the amendment tabled by the noble Lord, Lord West, which looks to remove subsection (2) of the Government’s amendment in lieu. This would remove the six-month time limit from the amendment, and the Government do not support this approach. The six-month limit is an important part of showing that the Government take seriously the fact that consideration of whether the MoU needs amending should commence in a timely manner. Removing the time limit would suggest that the Government could delay consideration beyond six months, which I do not think this House would support. So I encourage the noble Lord not to move his amendment, and I beg to move.

[Lord Carlile of Berriew (CB)]

My Lords, I now have the opportunity to speak to Amendment 22D. I thank the Minister and the others involved in the discussions we have had. I give particular thanks for the involvement of the Security Minister, whom he mentioned, in the creation of what the Minister offered today.

In my reamendment, I offered an independent review, which is quite a physical way—to use a metaphor—of examining the law in this area. We have been offered a much more neurological review, to use another metaphor, because it involves going to every place where knowledge is held within government of the possibilities by which foreign powers may contribute to political parties.

I am particularly grateful to the Minister because the Government are offering something that not only places a clear moral obligation on political parties by which their honesty will be judged, but which goes further. It means that there will be standards by which their honesty will be judged, which has potential implications for political parties that they had better pay regard to. Compared with the no-action approach when we last discussed this matter, what was decided today is a generous response by the Government.

I will close with another metaphor. The right reverend Prelate, who read Psalm 24 in Prayers this afternoon, spoke of a “pure heart” and “clean hands”. I doubt very much whether these measures will purify the hearts of political parties, but it will certainly make their hands much cleaner. I therefore announce my intention not to move Motion A1.

[Lord West of Spithead (Lab)]

My Lords, I will speak to Motion B1, an amendment to government Motion B. I am very pleased that the Government have finally proposed an alternative amendment, recognising that only the ISC can undertake effective scrutiny of intelligence and security work undertaken by the Government.

The ISC supports the government Motion on the basis that my Motion is also accepted. It removes the requirement for consideration of whether the ISC’s MoU needs to be updated to commence within six months. We are concerned that such a time restriction may have unintended consequences; it might inadvertently affect the ability of the ISC to oversee security or intelligence activity related to the Bill. For example, if the Government commence new security or intelligence activity as part of the Bill outside the ISC’s remit—beyond the six-month period—the Government could attempt to argue that they will not consider any commensurate update to the ISC’s MoU as considerations are required to start within six months of the Bill coming into force.

Because of the Government’s long-standing refusal to update the ISC’s MoU, and their continued arguments to justify their refusal to accept independent oversight of the committee, the committee is of the view that it will be much safer for us to remove this time limitation to avoid any possible confusion in the future. Although that sounds like a lawyer’s argument, this is a lawyer’s issue; it is something we have to be quite careful about.

While the government Motion will not remedy the significant gap in ISC oversight that already exists in relation to intelligence and security matters, it at least seeks to stop the oversight gap becoming even bigger. I hope that this reflects a turning point and the beginning of a shift in the Government’s position, including their acceptance of the need for robust, independent and democratic oversight of secret intelligence matters.

However, the House should not forget the wider problem, and we should continue to insist on a remedy. With my ISC colleagues in the other place, I have already explained repeatedly why the ISC’s MoU needs to be updated more broadly. I will not repeat those arguments now, other than to say that currently there is insufficient parliamentary oversight of the Government’s intelligence and security activities.

Intelligence and security matters are too important for there not to be comprehensive parliamentary oversight. There can be no activity by the Executive which escapes democratic oversight. The Motion is the first indication from the Government that they have begun to grasp this fundamental principle and the importance attached to it by those in this House. Despite the Motion’s significant limitations, I support it being added to the Bill, with my own Motion, to ensure that there are no unintended consequences which may negatively affect the ability of the ISC to oversee the entirety of this regime. I encourage the Government to use this as a foundation for constructive engagement on the rest of the ISC’s MoU, which, as I have explained, urgently needs updating.

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[Lord Carlile of Berriew (CB)]

I slightly despair listening to the noble Lord. Can we just ask for a little humility from treasurers of all political parties? I am afraid there is plenty of evidence that the garden is not as perfect as the noble Lord, Lord Leigh, is saying.

[Lord Leigh of Hurley (Con)]

I beg to disagree and am happy to offer humility. I note that recently the Labour Party returned a donation from a Mr Ian Rosenblatt which it decided was inappropriate. All credit to it. It happens regularly. This is not a political issue; this a cross-political matter. As I say, every donation is listed, so there is 100% transparency. I welcome my noble friend the Minister’s proposals, which I think are extremely sensible and helpful to this argument.

Illegal Migration Bill

Lord Carlile of Berriew Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

Moved by

[Lord Carlile of Berriew]

66: Clause 11, page 18, line 2, at beginning insert—
“17A(A1) This paragraph is subject to section 11(7) of the Illegal Migration Act 2023.”Member’s explanatory statement
This relates to the amendment in the name of Lord Carlile of Berriew to Clause 11, page 21, line 15.

[Lord Carlile of Berriew (CB)]

My Lords, I rise to speak to Amendments 66 to 76, which stand in my name, and in support of Amendments 77 to 79. The substance of my amendments is in Amendment 76. What I apprehend will happen, if the matter is brought to the opinion of the House, is that we will vote on Amendment 66 and, if it is carried, Amendments 67 to 76 will be moved formally. That seems the correct procedure to me; I have not been contradicted in that.

The amendments I have tabled are designed to confirm that the lawfulness of immigration detention is not simply put in the hands of Ministers but remains subject to the principles established in common law. All the amendments in this group would reinstate the existing Hardial Singh principles and be consistent with the conclusion and recommendation of the Joint Committee on Human Rights at paragraph 202 of its report. What did it say? It said:

“The common law approach to immigration detention, established in the case of Hardial Singh, currently operates to ensure that immigration detention complies with Article 5 ECHR”.


Before we possibly hear criticism from some quarters of the House about the use of the European Convention on Human Rights, I remind your Lordships, as a parenthesis, that it has recently been cited by the Government in support of their case in the High Court. They cannot have it both ways; they have had it the way of wanting to support the convention in court. The Joint Committee goes on:

“This recognises that it must be for the courts to determine the legal boundaries of administrative detention … We are extremely concerned that this change would result in an immigration detention system that is not consistent with Article 5 ECHR. The Bill should be amended to ensure that there is independent, judicial oversight of individual liberty and compliance with Article 5”.


What are the Hardial Singh principles? Before I come to them, I will cite a dictum from my noble friend Lord Brown of Eaton-under-Heywood, who—very sadly for the rest of us on this side of the House—retired recently. In 2012, in the case of Lumba v Secretary of State for the Home Department in what was then the House of Lords, rather than the Supreme Court, he stated:

“Freedom from executive detention is arguably the most fundamental right of all”.


That has been adopted, repeated and uncontradicted.

The four limbs of Hardial Singh, which were created by my noble and learned friend Lord Woolf in his judgment in that case, have been identified and described in more detail by Lord Dyson as four propositions governing the legality of Immigration Act detention emerging from Hardial Singh:

“i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;


ii) The deportee may only be detained for a period that is reasonable in all the circumstances;


iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;


iv) The Secretary of State should act with … reasonable diligence and expedition”.


Those are magnificent principles, created after repeated cases following our common-law tradition of creating sound precedent when there is not statutory law in place that is lawful.

The court makes its own judgment when applying the Hardial Singh principles and is not limited to reviewing the jurisdiction that has been exercised by a Secretary of State. It can examine “incidental questions of fact”, some of which

“the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary’s views as may seem proper”.

Those are the words of Lord Justice Toulson in R v Secretary of State for the Home Department in 2007.

That is the legal basis for these amendments. I will now leave the world of reality and the law and take a short trip into cloud-cuckoo-land. If any of your Lordships wishes to have a quick cup of tea, they can hear a shorter version of this by simply going into iPlayer and listening to last weekend’s edition of “Dead Ringers” on Radio 4, which tore this Bill to pieces in about 35 seconds. We keep hearing from the Minister something that is not based on reality. He seems to have forgotten that the Government lost a case in the Court of Appeal last week. We hear their plea in mitigation that it was a 2:1 decision, but every day in this House we have majority and minority votes. Verdicts of juries by 11 to one or 10 to two are no less verdicts of juries than verdicts by 12 to zero, so that argument has no power whatever.

Above all, we in this House are entitled to expect the Government to obey the law. They cannot send anyone to Rwanda; it is unlawful. The Court of Appeal found that the risk of unlawful refoulement from Rwanda meant that the Rwanda scheme was unsustainable. Furthermore, when the statistics for June—which I mentioned in the House last week—were recalculated yesterday, they showed that the number of people coming on small boats has reached record levels. So it is not exactly the deterrent that the Minister has been calling for repeatedly, unless they are going to change their approach and say, “Come to Britain in your small boats; it’s the quickest way of getting to Rwanda and to the two-star hotel accommodation that is being supplied there”.

We are not in a realistic situation, because they can send nobody to Rwanda at the moment. The appeal to the Supreme Court will not be heard and adjudged upon before October at the earliest. We will probably be into the next Session of Parliament. It is a little bit of an insult to this Parliament that the Government have not obeyed the law as found in that case, withdrawn this Bill and said, “We’ll start again when we have a decision from the Supreme Court”.

We have to be careful that we are the antidote to oblique motives. There are oblique motives based on the assumption, and not on any good grounds, that the Government will be able to send people to Rwanda—maybe they will, maybe they will not, but at the moment they have lost. My request and submission to your Lordships is that the only decent thing this House can do—Members on all sides, and I hope that the lawyers will not contradict this—is support the Hardial Singh principles and back Amendments 66 to 79.

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[Lord Murray of Blidworth (Con)]

My noble friend is right, in that it is one of the Hardial Singh principles that, if there is no reasonable prospect of removal, that person should not be detained. But I cannot agree with him that the policy of deterrence is not right, because it is clearly the Government’s intention to remove any illegal entrants to a safe third country. In answer to the noble Lord, Lord Carlile, I add that the Court of Appeal unanimously agreed with that being lawful as a matter of principle.

We recognise that circumstances can change. Where that is the case, detention must be reviewed. If it is considered that the anticipated period of detention is not reasonably necessary, the individual will be bailed. This reflects the existing legal and policy position on the use of detention.

It remains the Government’s view that the provisions in Clause 11 provide an appropriate balance between the respective roles of the Home Secretary and the courts. Accordingly, I ask the noble Lord to withdraw his amendment.

[Lord Carlile of Berriew (CB)]

My Lords, I express my gratitude to the noble Viscount and others who have spoken on the Bill, including the noble Lord, Lord German. I now come to this place for my daily dose of disappointment. It seems to me that the Minister is deliberately missing the point. He cannot be failing to see it, and I very much regret having to say that.

Who do noble Lords trust to make these decisions: a Minister or the courts? I will tell them something about the latter, in case they have never seen any of these cases in court. Judges sit day after day in the Administrative Court, hearing case after case involving asylum and refugees, and they make decision after decision about whether a period of detention is too long, too robust or unreasonable in some other way. They have built up a corpus of law which has become reliable and admired not just in this place but throughout our jurisdiction and the common law world.

Make your choice. I am going to test the opinion of the House.

[Lord Lilley (Con)]

My Lords, can the noble Lord explain why our courts, and our officials acting under their duties, reach such different decisions from the courts and officials on the continent? Why do we reject only 25% of claims for asylum, whereas France rejects 75%?

[Lord Paddick (LD)]

My Lords, this is Report and that intervention is not appropriate, I am afraid.

[Lord Carlile of Berriew (CB)]

Whether it is appropriate or not—and I tend to agree with the noble Lord, Lord Paddick, on that subject—it seems to me that the noble Lord who just intervened has made a very selective judgment without analysing the continental cases that have taken place. I have given a fair description of what happens in our jurisdiction; it is the one that I regard well, and I hope that your Lordships will too.

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Moved by

[Lord Carlile of Berriew]

67: Clause 11, page 19, line 6, after “to” insert “section 11(7) of the Illegal Migration Act 2023,”
Member's explanatory statement
This relates to the amendment in the name of Lord Carlile of Berriew to Clause 11, page 21, line 15.

Illegal Migration Bill: Economic Impact Assessment

Lord Carlile of Berriew Excerpts

Tuesday 27th June 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

I do not accept the premise of the noble Lord’s question, if that is what it was. The impact assessment published yesterday supports the need for change, sets out the broad costs of implementing the Bill, outlines potential savings, and highlights examples of where policy and operations have delivered an impact on illegal migration in other countries. For example, it shows that, for every illegal migrant deterred from making these crossings, the Bill will save the taxpayer £106,000, rising to £165,000 if current trends in accommodation costs continue.

[Lord Carlile of Berriew (CB)]

My Lords, can the Minister advise the House as to what weight should be given to this financial and legal impact assessment alongside the damage caused to the consistency of our domestic law and the terrible damage being done to our reputation as a keeper of international treaties?

[Lord Murray of Blidworth (Con)]

As I made clear during its earlier stages, the Bill introduces a new legal regime, and it is the Government’s view that it is consistent with our international obligations, which we always strive to meet. It is right that the facts in this impact assessment, and in the overall assessment of the situation made by the Government, are in favour of this legislation.

National Security Bill

Lord Carlile of Berriew Excerpts

Consideration of Commons amendments
Wednesday 21st June 2023 Lords Chamber

Motion A1 (as an amendment to Motion A)

[Lord Carlile of Berriew]

Moved by

At end insert “, and do propose Amendment 22B in lieu—


22B: After Clause 14, insert the following new Clause—


“Foreign interference in elections: duties on political parties


(1) A UK-registered political party must, within three months of the passing of this Act, and annually thereafter, publish a policy statement to ensure the identification of donations from a foreign power (whether made directly or through an intermediary).


(2) A UK-registered political party must provide the Electoral Commission with an annual statement setting out individually the details of all donations from a foreign power, including whether made directly or through an intermediary (and identifying all such intermediaries).


(3) In this section, “UK-registered political party” means a political party registered under Part 2 of the Political Parties, Elections and Referendums Act 2000.””

[Lord Carlile of Berriew (CB)]

My Lords, in moving Motion A1 as an amendment to Motion A and proposing Amendment 22B in lieu, I should say that I shall support, if it is necessary to do so, Amendment 122B, which will be moved by the noble Lord, Lord Coaker.

The Minister mentioned the very pleasant meeting I had with three Ministers and a number of officials about my amendment, and I was very grateful for that meeting. I was given a very simple message—with which I do not agree—that the law goes far enough to protect political parties and those who vote for them from the intervention of foreign powers. My amendment would place no extra burden on Ministers; I removed that from the original version. What it does—rightly, in my view—is place a burden on political parties to do what in the commercial world is routine and carry out proper due diligence, as the term is, on the people who contribute to them.

I listened with great care to what the Minister said a few moments ago. If my noble friend Lord Kerr will forgive me for quoting one of his many memorable sotto voce utterances, he turned and said to me, “So that leaves it to the thief to report the crime, doesn’t it?” I agree with him. Indeed, what the Minister said suggested that when, say, a company is used, up there in Companies House, if you make a complaint, there are investigators who will carry out an investigation to see where the money ultimately comes from—the ultimate donors, not those nice nominees who are nominated directors of the company. However, I do not know how many of your Lordships know this, but Companies House has no investigators whatever—zilch, zero. If noble Lords will take the trouble, during the boring parts of what I hope will be a short speech, to look at GOV.UK, they will see that it tells people that if they want an investigation done into a company they should go to the Serious Fraud Office or somewhere like that.

I accept that the Government want political parties to be properly funded, not improperly funded, although some political parties have accepted unusual sums of money from unusual places. However, I hope that the Minister—and noble Lords if this comes to a vote later—will agree that more due diligence is needed, and that we cannot take at face value that the criminal should report his own crime. We are dealing with bad people here, not good people.

I thank the organisation Spotlight on Corruption for some excellent research that it has done; I feel that it deserves that namecheck. Donations from foreign powers are a significant threat to the UK’s national security and undermine the integrity and credibility of our democratic processes. There is plenty of evidence to support that. A report in 2020 by the Intelligence and Security Committee identified that members of the Russian elite linked to Putin had donated to UK political parties.

Another bit of evidence is that in January 2022 the Security Service warned that an alleged Chinese agent had sought to influence UK parliamentarians on behalf of the Chinese Communist Party and had donated to two major political parties that stand in every seat in this country. In mid-April 2023 concerns were raised in Parliament about alleged links between the Chinese Communist Party and Conservative Party fundraising. The Minister of State for Policing said that

“all political parties need to be alert to the danger of representatives of hostile states seeking to infiltrate or influence their activities”.—[Official Report, Commons, 19/4/23; col. 249.]

This amendment is just that alert.

The Home Office impact assessment for the Bill emphasises that foreign interference is a direct attack on our sovereignty, national institutions and values. The Bill will not prevent that attack unless political parties are required to play a part. One of the noblest things that this noble, unelected House does is to protect democracy from itself, and that is what the amendment is intended to do.

We turn to the safeguards that the Minister says are effective. They are not. The rules that are supposed to prohibit foreign donations in the Political Parties, Elections and Referendums Act 2000 are absolutely riddled with loopholes. They enable foreign money to be channelled to political parties and MPs through what appear to be lawful donors, such as UK-registered businesses and unincorporated associations. The Act requires UK political parties only to check the status of donors; it does not require them to have a risk-based approach to donations. The nominated directors may look like ordinary nominees, but I think it was yesterday that we heard from my noble friend Lord Vaux, in an excellent speech, how names can appear in Companies House as directors and bear no relationship to the control of a company. We come to the same point twice in two days. While the UK’s anti-money laundering framework has been progressively tightened over the last decade, the minimal checks that parties are required to perform are a glaring anomaly.

How effective are the sanctions? The Electoral Commission referred eight cases to the Metropolitan Police in the period 2011 to 2021. I will give your Lordships one guess as to how many prosecutions there have been—absolutely none, because it is completely unreasonable to ask the police suddenly to move into this complex area to carry out the detective work and do the due diligence that any company, whether significant or relatively insignificant, should carry out.

I do not accept for one moment that what I am proposing will affect tiny political parties, because they will be taking their funds from a small group of closely interested people who will, effectively, be their close friends. What we are talking about here is the bigger political parties.

There is consensus among independent experts that parties should check the source of donations. In 2018, the Electoral Commission argued that risk management principles adapted from anti-money laundering undertaken by businesses could

“prevent foreign money being used in UK politics”.

It emphasised that political parties had a duty to do just that. This was supported, in effect, in the July 2021 report Regulating Election Finance by the Committee on Standards in Public Life.

I was pleased to note that my original amendment, to which this is in itself an amendment, was supported in the other place by the Conservative chair of the Intelligence and Security Committee, Sir Julian Lewis MP, who said that the need for political parties to do more to determine the source of donations is “entirely appropriate” and that the additional measures would not be “over-onerous” and were “eminently reasonable”. The Government said that the amendment would impose “huge administrative burdens” on grass-roots political campaigning, but this is just not the case. As the chair of the Electoral Commission has highlighted, a requirement to determine the true source of donations is proportionate and would not by design overburden smaller parties with limited resources.

About 35 years ago, when I was an MP in the old Liberal Party, my Whip and the Opposition Labour Whips asked me to go and sit on the Reasons Committee in the other place. I think it was not really a compliment. If your Lordships have ever been behind the Speaker’s chair they will know that there is a little room, which I thought until that night was private facilities for the Speaker. In fact, it is the reasons room, though that is not on the door, because visitors would assume that it was straight out of “Alice in Wonderland”—and it is, a bit. The Government of the time were privatising the railways and the opposition parties had tried to avoid ping-pong happening twice in one night. I think the reason I was chosen was that they thought I could keep a debate on next to nothing going for an extremely long time.

[Noble Lords]

Oh!

[Lord Carlile of Berriew (CB)]

I am not sure how to take that laughter.

Interestingly, we debated for one and three-quarter hours who should be the chair of the committee, until my pager pinged—we had pagers in those days. It read: “You can go home now. Their Lordships have gone to bed”.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

Obviously, I will make sure that those concerns are reflected to my right honourable friend the Security Minister, who will see the committee fairly soon. As I have just said to the noble Lord, Lord Coaker, clearly I will make sure that this debate is widely understood in the appropriate places.

[Lord Carlile of Berriew (CB)]

My Lords, I am grateful to all those who have spoken in this debate; I am particularly grateful to the Minister for his great courtesy. I say to him, with great respect, that he has answered mostly questions of his choice that were not directly relevant to the points I made. In my experience over the years, the repetition of a weak defence is capable of convincing only the defendant and nobody else.

I thank those who spoke. It is worth mentioning their names for a particular reason. The noble Lord, Lord Coaker, was powerful, as ever. The noble Baroness, Lady Hayter, made some powerful additional points. The noble Lord, Lord West, is always the right person to have on the bridge with you if you can arrange it; he spoke powerfully about the views of the ISC. The noble Lord, Lord Wallace of Saltaire, speaks on matters of the constitution with great political and academic knowledge, and has done so for many years. I have always respected the noble Lord, Lord Anderson of Swansea, whom I have watched in the other place as well as here, for the wisdom of his views. The noble Lord, Lord Purvis, has yet again made another powerful speech in your Lordships’ House. Interestingly, the noble Lord, Lord Balfe, was the only Member on the Conservative Back Benches to speak in this debate—a factor that I take to be of significance.

Taking all that into account, it is my intention to invite the House to agree to my Motion by expressing its opinion.

Illegal Migration Bill

Lord Carlile of Berriew Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

That is the tension in tone and competence in these various departments that I wanted to highlight in Amendment 139. I look forward to the Minister’s response.

[Lord Carlile of Berriew (CB)]

My Lords, I support Amendment 139 in the name of the noble Baroness, Lady Chakrabarti. I have put my name to Amendments 134 and 135 in the name of the noble Lord, Lord Coaker, and I will leave it to him to speak to them if he wishes to do so at any length. I support these amendments to ensure that we have accountability and review, and I do so on a probing basis.

I think the Minister who will reply to this debate, the noble Lord, Lord Sharpe, has been in the Chamber when the noble Lord, Lord Murray of Blidworth, has been subjected to a considerable amount of attrition on the Bill—which he has treated with commendable control and self-restraint. Few have been provoked as much as he has in this Chamber in recent years. That said, I think the noble Lord, Lord Murray, would confirm in his private conversations with the noble Lord, Lord Sharpe, that there is real concern in your Lordships’ House and in certain well-informed sectors in the country about the consequences of the Bill.

In the recent past we have had reviews—I and my noble friend Lord Anderson have been part of this in relation to terrorism—which have reported to Parliament in relation to controversial pieces of legislation that cause great concern, particularly to Members of the other place. I understand that, having been one. I simply ask the Government to take into account that such reviews are necessary in some form and to provide for accountability and review of the consequences of the Bill, if it becomes an Act of Parliament.

[Lord Kerr of Kinlochard (CB)]

My Lords, I disagree with the noble Baroness, Lady Chakrabarti. She made her case for transferring this responsibility from the Home Office to the Foreign Office on grounds of efficiency and good administration. In my totally unbiased view, it is of course the case that the Foreign and Commonwealth Office is a model of efficiency and good administration. But on practical grounds, I really do not agree with this.

There is a Foreign Office role. The role of the treaty section is monitoring, ratification procedures and quality control over the treaties that we sign. There is a role for legal advisers, referred to by the noble Baroness, monitoring the Government’s respect for their treaty obligations and, if necessary, reminding other departments of the obligations that we have taken on.

There could be a role for our posts abroad. I strongly support the proposal in Amendment 130 for the safe passage visa. It would be very good if our posts abroad were allowed, say, to filter out applications that are clearly not unfounded and to assist applicants with the electronic application system. That would be very good, but the trend in the Home Office, which the noble Baroness in my view correctly described, to move more and more to being a department of the interior, with a bit of homeland security, would be increased if responsibility for carrying out our treaty obligations in respect of asylum seekers were transferred to another department.

Moreover, the Foreign Office really is not equipped to take on the enhanced teams required to deal with 178,000 applicants in the asylum queue. So, although I understand the noble Baroness’s motives and applaud her praise for the Foreign and Commonwealth Office, I am against this proposal.

--- Later in debate ---

I hope the Government may be able to look at the potential economic argument. Not allowing these people to work is, for a Conservative Government, very odd.

[Lord Carlile of Berriew (CB)]

My Lords, at an earlier stage in our debates on the Bill, I referred to the fact that I am a member of the Woolf Institute’s Commission on the Integration of Refugees, which is declared in the register of interests.

I and some other Members of both Houses of Parliament have had the advantage of going to a number of meetings where those with lived experience of applying for asylum and achieving it have told us about their experience. Unanimously, they say that being unable to work while there has been work obviously available for them has been the most dispiriting experience. It is the thing that has driven them—most of them young people with considerable skills, and some with professional and technological qualifications—near to total despair. It seems entirely unreasonable that they should not be able to work when, as my noble friend has said, there is clearly work available and the pull factor has been shown to be non-existent.

The other thing that people with lived experience have mentioned is the lack of availability of higher education in particular in some areas. I invite Ministers to take account of that issue too.

[The Lord Bishop of Durham]

My Lords, I support Amendment 133 in the name of the noble Baroness, Lady Ludford. My right reverend friend the Bishop of Chelmsford has added her name to it. She regrets that she cannot be here today; she is actually working with the Woolf Institute’s independent commission on refugee integration. I thank the noble Baroness, Lady Ludford, and other noble Lords who have eloquently made the case for the amendment already.

As it stands, the Bill makes the case for a right to work for some asylum seekers more important than ever. Of course, it is a theme that has come up already. There is little prospect of potential removals being able to keep pace with the large population of asylum seekers who will be deemed inadmissible in the future, and currently we have a huge backlog. We risk the creation of a permanent underclass. Apart from the deleterious effects, that drives some of those people into the grey and black economies because they are not allowed to work openly.

In principle, there may be a grain of evidence on the pull factors but not very much at all, as has been noted already. Allowing a subset of asylum seekers to work does not undermine the duty on the Secretary of State to remove people or open up any path to citizenship or leave to remain. If the Government are able to deliver on their own timelines for processing people and deeming that they are refugees, or should be removed, not a single person will ever attain the right to work under the amendment. We ought to consider the amendment as nothing more than a failsafe aimed only at those who have been here far too long without the ability to support themselves easily and who wish to work and contribute to their own welfare, that of their local community and sometimes that of their family, back in the land they have come from, who are sometimes in semi-hiding.

I think of a friend of mine—I will share a bit of the story, but I do not want to identify them in any way—who has been given the right to work because their claim was not dealt with within 12 months. Because of the inefficiency of the system, it took nearly 12 months after that for them to be told they had the right to work. They are now working in the care sector, way below the level of qualifications and experience they have in their life; they could potentially offer huge amounts to this country. They fled because of persecution. What do they do with most of their money? They pay tax and so on, but they send most of it back to the home country to support their family who are in semi-hiding. It enables their dignity to feel able to support their family, as well as taking part in the life of the community and feeling they are contributing to a country that, they still hope, will welcome them.

This is entirely in line with Conservative economic arguments. It is in line with everything in the universal credit system about encouraging people into work and supporting themselves. Please, it is time to agree to this.

--- Later in debate ---

[Baroness Stowell of Beeston (Con)]

I cannot, and I am not here to get into a detailed discussion about that. I am simply trying to make this point. Noble Lords are raising the issue of productivity and the economy as a justification for accepting this right now in the Bill. As I said to the Committee earlier, there is some value and legitimacy, in principle, to some of the arguments being made. For instance, I would support the right reverend Prelate’s argument about ensuring that people who come to this country and are waiting for their application to be processed are able to make their contribution. However, we need to get to a position where the current rate of asylum seekers in the system is not that with which we are currently dealing.

Some noble Lords are arguing to be able to do both at the same time. Of course, I absolutely agree that the Home Office must be much better than it currently is at processing these things. I am not disagreeing with any of this. Unlike those noble Lords, however, I am saying that, for that kind of change to be accepted by the country at large, we have to take steps to get there. If you look at the bigger issue of immigration, part of what we are trying to do is to create a system that is acceptable and works for the country as a whole, and that everybody can have confidence in, so that they can feel much more in line with what the noble Baroness, Lady Ludford, would like everyone to feel and believe regarding the changes she wishes to see. We cannot do it all at the same time.

That is what I am trying to do. I am not trying to argue about pull or push factors; just that the Bill is about an immediate issue that the Government are rightly trying to respond to—

[Lord Carlile of Berriew (CB)]

My Lords—

[Baroness Stowell of Beeston (Con)]

I will finish my point and then I will give way. I think that some of the matters that noble Lords are advancing should not be dealt with at this time. I give way to the noble Lord.

[Lord Carlile of Berriew (CB)]

I am extremely grateful to the noble Baroness for giving way. I wonder whether she will answer the next question with a yes or no, because I am confused by some of the things I have heard from her. If a job is available and an asylum seeker is the only person available who can realistically fill it, does she agree that, after three months or so, the asylum seeker should be allowed to take that job?

[Baroness Stowell of Beeston (Con)]

At the moment, if somebody is still awaiting a decision on their asylum status or their status as a citizen or resident of the country, they are not eligible for employment—no.

[Baroness Lawlor (Con)]

My Lords—

[Lord Carlile of Berriew (CB)]

Surely noble Lords can speak only if they have been present throughout the debate from the very beginning.

[Lord Davies of Gower (Con)]

The noble Lord is absolutely right—that is correct.

--- Later in debate ---

[Baroness Lawlor (Con)]

The noble Lord may be referring to my having to rush out urgently—I needed to get a glass of water. I shall catch up with the speech of the noble Lord, Lord Cormack, which I missed with great regret, but I was back for the next one.

[Lord Carlile of Berriew (CB)]

I do not want to be unkind, but the rest of us manage to persuade the door- keepers to bring us glasses of water.

[Baroness Stowell of Beeston (Con)]

May I? Forgive me, I am normally somebody who is a stickler for us keeping to the Companion—absolutely, for sure. However, if the noble Baroness, Lady Meacher, can contribute to this debate having not even been here at the beginning, when my noble friend was here at the beginning and nipped out to get a glass of water, I think we can hear from my noble friend. If the noble Lord is minded to object, I would hope he would have objected to his noble colleague speaking.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, I am sorry if the noble Baroness misunderstood my first comment. It was in response to the point made by the noble Baroness, Lady Lawlor.

[Lord Carlile of Berriew (CB)]

My Lords, I hope that the noble Baroness will not mind my using her as an excuse but, on reflection, I think that I was unkind to the noble Baroness, Lady Lawlor, and I wish to apologise to the House.

[Baroness Hamwee (LD)]

My Lords, shall I move on to Amendment 150? In fact, it takes us back to the previous group; I have no idea why it comes into this group. It would provide that the Act should not come into force until at least 28 days—I propose—after the Secretary of State has published a statement confirming the number of persons who, for a period of six months or more, have been awaiting final determination of their claim for asylum; and that, for not less than six months, that number has been not more than 20,000.

That may be a little circular and rambling but, basically, it proposes that we should get to a steady state in dealing with asylum applications. The periods may not be ones that noble Lords agree with, but I propose a figure of 20,000 people, which is not a negligible number of people. This amendment seeks to be realistic and provide a bit of—to our minds—common sense to the context of what we are debating.

I am grateful to the noble Lord, Lord Carlile, the noble Baroness, Lady Neuberger, and my noble friend Lord Paddick—who probably had no option but to sign it. This is a serious amendment that follows on from the serious points made about the operations of the Home Office. It is the backlog that is the problem. So much of this debate has suggested, implicitly or explicitly, that the position that we are in is somehow the fault of those who are seeking asylum, which is not an easy thing to take on.

Illegal Migration Bill

Lord Carlile of Berriew Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I wish to speak to my Amendment 129 on refugee family reunion. I am grateful for the support of my noble friend Lord Paddick, the noble Lord, Lord Kerr of Kinlochard, and the noble Baroness, Lady Bennett of Manor Castle.

Refugee family reunion does exist as a safe and legal route but it needs to be expanded. I was proud to steer a Private Member’s Bill on that subject; it passed through this House and is currently in the other place. I picked up the baton from my noble friend Lady Hamwee, who has worked on this issue for many years.

The problem at the moment is not only that the safe routes available to refugees are extremely limited; last year, refugee settlement provided in collaboration with the UNHCR decreased by 39% and the issuing of refugee family reunion visas decreased by nearly a quarter—the right reverend Prelate the Bishop of Durham referred to this. In the year ending March 2022, 6,000 family reunion visas were issued. In the year ending March 2023, there were only 4,600—a reduction of 23%. The Bill misses an opportunity for the UK to curb the number of irregular arrivals by creating more routes to safety and—I would like it to fulfil this opportunity—to allow more family members to join those who have reached safety in this country, including by letting separated refugee children be joined by their closest family members.

Last year, the Nationality and Borders Act restricted access to family reunion for refugees arriving in the UK irregularly. Of course, it has failed to replace the Dublin regulations since we left the EU. The noble Lord, Lord Hannay, referred to the hole that exists for international co-operation; we might refer to that later today. Although those restrictions from last year’s Act are beginning to take effect only now, preliminary research from Refugee Legal Support has already found evidence of children who would previously have been eligible for reunification being stranded in Europe and crossing the channel dangerously.

Australia provides an example of the longer-term impact of this sort of restriction. In 2014, Australia reintroduced temporary protection visas—which do not confer family reunion rights—and has seen an increase in the number of women and children arriving via dangerous journeys. We should remember that 90% of those arriving on family reunion visas in this country are women and children. I am sure I do not need to convince noble Lords of the importance of family reunion for refugees’ integration into their new communities. Surely that should be our aim. If we have allowed people the legal right to settle here, and in some cases be on a path to citizenship, surely we should want to do anything that fosters integration and the physical, emotional and psychological adjustment of people.

Refugees separated from their families can, understandably, experience serious mental health difficulties, compounding the trauma that they have already experienced. This means that they are less able to focus on activities which are essential to integration, such as learning English, building new relationships in the community, and working, which is another topic that we will talk about today. In the other place, the Conservative MP Tim Loughton tabled a new clause seeking to expand eligibility for refugee family reunion, and I applaud him for that. It did not get pushed to a vote.

The problem is that current family reunion entitlements are too restrictive. I have mentioned that refugee children are not allowed to sponsor family members within the Immigration Rules, and we have also had the creation of those bespoke pathways, such as the Afghan route, which do not confer protection status, meaning that some resettled people in the UK have no eligibility for refugee family reunion because they do not have the necessary status to sponsor family. All those with protection needs must have access to refugee family reunion. This pathway should be expanded to allow children to sponsor their parents and siblings and adult refugees to sponsor parents who are dependent on them.

We referred on Monday to the Immigration Minister, Robert Jenrick, announcing on 8 June that the differentiation policy, which under last year’s Act decides whether someone is a group 1 or group 2 refugee, would be paused, and that those previously given group 2 status would have their entitlements increased. However, the announcement says only that the policy will be paused. The power to differentiate will still be on the statute book. Can the Minister explain exactly where that leaves us, and the Government’s intention on how to go forward on this? Will they bring forward an amendment to the Nationality and Borders Act to delete group 2 refugees?

This Bill does not deal directly with refugee family reunion, and my amendment is designed to fill that hole. However, the Bill would dramatically reduce the number of people eligible for this route, as we have discussed, because it makes asylum applications from people who travel irregularly permanently inadmissible. They would never be granted protection status and would therefore never be able to sponsor family members. I propose expanding the Immigration Rules to allow refugee children to sponsor parents and siblings, refugees to sponsor their dependent parents, and Afghans settled via pathways 1 and 3 of the ACRS to be able to act as sponsors for the purposes of refugee family reunion.

I am afraid to say that research from the Refugee Council and Oxfam has found evidence of refugees turning to smugglers after realising that there were no legal routes available to bring their loved ones to join them. A lack of access to family reunification does appear to be a key driver of dangerous journeys. As many as half of those seeking to cross the channel from northern France have family links to the UK.

Finally, our Justice and Home Affairs Committee, chaired by my noble friend Lady Hamwee, published a report in February called All Families Matter: An Inquiry into Family Migration. One of its recommendations was:

“The Government should harmonise which relatives are, or are not, eligible for entry and stay across”


various

“immigration pathways and the Government should be transparent about the reasons for any differences”,

because there is variation in the definition of a family.

I am afraid that the Government’s response had me rather puzzled; it appears to be a bit circular. They say:

“We do not think it is … right … to fully harmonise the conditions … There are clear differences between immigration routes relating to family members. Given the broad and diverse offer for family members across the immigration system, it is right that requirements vary according to the nature and purpose of their stay in the UK”.


I felt that that was a bit circular or tautological—I am not sure which is the right description. They say that, because it varies at the moment, it is right that we carry on with the variations. I do not think that any reasons or explanation were given; it was just stating why we go all round the houses.

I urge support for Amendment 129 and suggest that it is an extremely valuable part of the provisions on safe and legal routes; it is a subset, if you like, of everything we are debating this morning. The problem is that the current provisions are far from being sensibly expanded to the benefit of the families—the settled refugees and their families—and our society as a whole. One thing that we often hear from the Conservative Party is that it is party of the family. Many of us would dispute that; but if it is, it should support not only the maintenance but the expansion of refugee family reunion, which is currently going in the wrong direction.

[Lord Carlile of Berriew (CB)]

My Lords, I have added my name to Amendments 130 and 131, but I speak in support of all the amendments in this group.

There have been some very good and persuasive speeches, but I refer particularly—and I am sure that others will understand why—to the speech made by the noble Lord, Lord Kirkhope. Why? For more than one reason. First, the noble Lord was the Immigration Minister at a time of particular attrition in Bosnia, as he referred to, and he has a great deal of knowledge on that matter. Secondly, he has had the courage to make his speech from the Conservative Back Benches in your Lordships’ House, and I particularly look forward to the Minister dealing, line by line as it were, with every point made by the noble Lord.

Thirdly, my belief is that, somehow or other, the Bill is a visceral part of the attempt to win votes beyond the red wall. However, the Government only have to look at the noble Lord’s history to find somebody who has within his blood and bones the red wall: he cut his teeth in the north-east of England; he represented part of another great city in the north-east of England; and he represented his party in Europe, on behalf of areas beyond the red wall. So, if the Government are listening to those whom they are aspiring to gain votes from, perhaps he, above all, is the person they should be listening to at the moment. I hope he will forgive me, because praise from me may not be altogether familiar or welcome.

I hope that everybody in this House wants to stop the boats. My question is: do we want to stop the boats by means within international law and treaties, or by means that are in breach of those international laws and treaties that we have signed? As I pointed out in a debate I think the day before yesterday—although it might just have been early yesterday—the Home Office website, at least when I was speaking very early yesterday morning, still had on its immigration pages inferences that we have to obey international law on immigration and asylum.

Illegal Migration Bill

Lord Carlile of Berriew Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

[Lord Cashman (Lab)]

My Lords, I will speak briefly to the amendments in this group. In so doing, I refer your Lordships to my entries in the register of interests, particularly as patron of the AIDS and HIV charity, the Terrence Higgins Trust.

I particularly support the amendments of the noble and learned Lord, Lord Etherton, who brilliantly explained the reasoning behind them. As he says in his explanatory statement to Amendment 105, the current wording of Clause 38(5)(c) is too wide and would preclude

“a human rights claim pursuant to Article 3 of the European Convention on Human Rights”,

which the Government are suddenly clinging on to. It would also preclude a protection claim pursuant to the refugee convention. I am not a lawyer, so I will not dwell too much on those matters; however, I support the argument that what is proposed in this clause is not in conformity with the jurisprudence of the European Court of Human Rights in Strasbourg and not in accordance with the jurisprudence of the United Kingdom.

At the heart of this provision is the removal to the so-called safe countries in Schedule 1. As your Lordships will know, I am not alone in my concerns; they were discussed with great concern on the first and third days in Committee and today. Indeed, the Minister, the noble and learned Lord, Lord Bellamy, tried to reassure me and others that the list was really an amalgam and that the countries, where people who might be subject to discrimination because they belong to a particular social group will be going, might perhaps say, “We don’t want them”. That is a wonderful hypothetical answer, but my reply is: what if a person who is HIV positive is sent to a country, such as Uganda, where that person, if they are lesbian, gay or bisexual, would have to say to their medical practitioner that they are lesbian, gay or bisexual? That medical practitioner, if they did not reveal that information to the Government, would face two years’ imprisonment, while the person receiving treatment themselves could be criminalised. That is just one country from a huge range of countries, not only around the world but particularly within the Commonwealth. Some 80% of the countries of the Commonwealth currently criminalise people because of their sexual orientation and gender identity.

Because of the lateness, I will now take my place. But for the reason I have just cited, and many more, I heartily and unreservedly support these amendments, particularly those of the noble and learned Lord, Lord Etherton.

[Lord Carlile of Berriew (CB)]

My Lords, I will speak in support of both my noble and learned friends, who sit to my right in the Chamber. I am particularly grateful, as I think the whole Committee is, to my noble and learned friend Lord Etherton for the very clear exposition he gave of the law and of the consequences of these provisions which change the law.

I will put my very short analysis of this into “faults” and “conclusions”. Clause 38 is word soup, full of tautology and contradictions—the sort of thing that makes fortunes for lawyers if they can get in front of judges, like my noble and learned friends in the very senior courts, and make esoteric arguments based on an analysis of the text. The word soup is most certainly not a consommé clarified by the use of egg whites, so that you can see through it to the bottom of the bowl. It is more like a sort of mad minestrone, into which the draftsman has thrown every word vegetable that he or she could find.

Let us look at Clause 38(3), where the “serious harm condition” is in inverted commas. I was taught at school never to use inverted commas, if you could avoid it, because they show a weakness in your argument, unless it is a quotation that someone said. It says:

“The ‘serious harm condition’ is that P would, before the end of the relevant period, face a real, imminent and foreseeable risk”.


Supposing we missed out the words “real, imminent and”, what difference would it make if it simply read,

“before the end of the relevant period, face a … foreseeable risk of serious and irreversible harm”?

If one missed out the words “and irreversible”, would it mean less if it read:

“The ‘serious harm condition’ is that P would, before the end of the relevant period, face a … foreseeable risk of serious … harm if removed from the United Kingdom”?


What are they trying to gain by the word soup—the possibility of making bizarre submissions in front of the senior courts in which my noble and learned friends sat?

After those comments, if you were asked, “What does all this mean?” by a lay man who might be up at 10.10 pm looking at parliamentary TV or parliamentlive.tv and fascinated by every word in this debate, you would say to him, “Just go and have a look at Clause 38(5)(c)”, which refers to

“where the standard of healthcare available to P in the relevant country or territory is lower than is available to P in the United Kingdom”.

They—or at least those who were well informed enough to be sitting up at 10.10 pm, watching parliamentary TV—would immediately say, “This is deliberate discrimination against gay men”. What else is this for?

We should be ashamed of ourselves if, at least when it comes to Report, we allow this kind of provision to remain in the Bill and do not help my noble and learned friends to pass their amendments. But I hope that we do not have to reach that stage, because this word soup should seem as ridiculous to our noble friends the Ministers as it does to some of us.

[Lord Paddick (LD)]

My Lords, this has been an interesting, if not bewildering, debate—at least to us non-lawyers. My lay interpretation of the provisions we debated in this group is that they highlight the danger of asylum seekers being removed to countries where they could come to harm by making the level of proof required to suspend removal so high, and by making the evidence required to prevent their removal so compelling—within impossibly short timescales—as to make the likelihood of a successful claim diminishingly small. If it turns out that it is not diminishingly small enough, the provisions allow the Secretary of State to redefine what “serious and irreversible harm” means to make sure that the tap is turned off almost completely.

The noble and learned Lord, Lord Etherton, questioned whether such an approach is compatible with existing law. It is quite clear what the Government are trying to do here: make it impossible for anyone to resist removal from this country under the provisions of the Bill. That is why we do not believe that Clauses 37 to 42 should stand part of the Bill.

--- Later in debate ---

[Baroness Ludford (LD)]

My Lords, I can be relatively brief. I thank the noble Baroness, Lady Chakrabarti, for introducing her amendments so powerfully and with such knowledge. I agree with her that there is a curious disparity between Clauses 52 and 53, and my proposition is that they should be swept away and should not stand part of the Bill. As she said, the Home Office getting its act together and making decent decisions in the first place would be how to reduce the workload and what the Government seem to think is the overreach of the courts—I do not agree that it is overreach. If you get things right first time, you would not need to keep attacking the courts.

Clause 52 is a straightforward ban on domestic courts granting interim remedies to stop the removal of a person from the UK. We are familiar with this “courts are enemies of the people” stuff. The interim remedies are valuable because they allow the courts to maintain the status quo while a claim is considered. When the harm in question is a violation of human rights, the ability to freeze the situation is valuable. Denying the courts the ability to use interim remedies when justice demands it undermines the guarantees of Articles 2 and 3 of the ECHR. Clause 52 should be removed, and I am glad to say that the JCHR agrees.

Clause 53 is a different animal altogether. It is really rather peculiar, and it takes a strange and circuitous route to block interim measures from Strasbourg, by giving a Minister discretion to decide whether or not to disapply the duty on the Home Secretary to remove the person. Given the negotiations under way over the procedure for deciding interim measures, as reported in the press and alluded to by the noble Baroness, Lady Chakrabarti, this clause appears to be more politics than law. It is strange, given that the Prime Minister was recently in Reykjavik, at the summit of the Council of Europe—and given that the JCHR’s recent report says:

“We welcome the Prime Minister’s recent reaffirmation of his ‘deep and abiding’ commitment to the ECHR”


and the European Court of Human Rights, made at that very recent summit.

Then, the Government propose in Clause 53 to give Ministers permission to act in direct violation of the UK’s obligations under the ECHR. Talk about right hand and left hand: it is not only incoherent but provocative. That does not seem wise, if the aim is open and good-faith negotiation on possible procedural reform. It is very reminiscent of the way the Government went about dealing—or rather, not dealing—with Brussels over the Brexit negotiations: always aiming to antagonise, then turning around and saying that they are punishing us.

Clause 53 is irresponsible and it is not going to progress any negotiations, in so far as they are necessary, and given the small number of interim measures issued by the Strasbourg court, it seems to be taking a sledgehammer to crack a nut. Not only is Clause 53 likely to hinder discussions on procedural reform, if that is necessary; it makes broader conflict with the European Court of Human Rights all but inevitable. If there is dissatisfaction with the procedures in Strasbourg, the solution is to pursue reform at the European level—and there have been many instances of discussions in the Council of Europe about the processes of the convention and the court. It is not even saying, “We will never obey interim measures”; it gives the Minister the discretion to refuse to comply with our obligations by obeying interim measures. Surely, the UK’s interests are better served by remaining, in the Foreign Secretary’s words, a “serious player” on the world stage, rather than undermining its own influence in this way. I therefore believe that Clauses 52 and 53 should not stand part of the Bill.

[Lord Carlile of Berriew (CB)]

I want to make a brief contribution on Clause 53. We cannot ask the Minister to comment on the impact assessment, because it is yet to be born, but we have the advantage of the report of the Joint Committee on Human Rights, referred to by the noble Baroness, Lady Ludford. At paragraph 12, on page 121 of that report, in its recommendations and conclusions, it says that

“clause 53 gives Ministers legislative permission to act in direct violation of the UK obligations under the ECHR. Where a Minister chooses to ignore an interim measure and therefore breach Article 34 of the ECHR, clause 53 also prevents the courts from having regard to interim measures when considering proceedings under this Bill. This clause therefore permits deliberate breaches of our obligation to comply with interim measures of the ECtHR. Clause 53 must be removed from the Bill”.

That is the conclusion of an all-party Joint Committee of both Houses of this Parliament, and I trust that, in his response to the debate, the Minister will respond and give us his reasons for not accepting that carefully considered conclusion of the committee in one of the largest reports it has ever produced—and in the time when they could have produced 20 impact assessments.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I am grateful for that short intervention. I am now not sure whether I am intervening on the noble Baroness’s speech or she is intervening on mine but she made a couple of points. I do not know whether she has seen my notes because I was going to come to the state practice point in a moment. Frankly, I should not really give this away but that point is probably the best point against the arguments that I am running. I am a little surprised that the noble Baroness, Lady Chakrabarti, did not mention it but I shall do so; it is the best point. I am not speaking for the Government so I am not going to divine what is in the mind of the noble and learned Lord, Lord Bellamy, or that of the Minister who will respond; they can speak for themselves and I will speak for myself.

What I was saying is twofold. First, I was not saying that there are no circumstances in which you cannot justify a Rule 39 order. I thought I had made it clear that, if you can justify it properly under Article 34 in the particular circumstances of the case—such as a death penalty case—and there are proper natural justice provisions, it could be justified. That is my first point.

My second point is that the mere fact that states abide by Rule 39 indications will not, I suggest, be enough for state practice as a matter of international law. The fact that a court tells me to do X and I do it does not show that I accept that the court has jurisdiction to tell me to do it. I might choose to do it because I do not want to pick a fight with the court. One has to find a more detailed and forthright statement that is sufficiently unambiguous, and then look at that coupled with everything else.

I have delayed the Committee long enough. On this point, I direct the noble Baroness, Lady Ludford, to Policy Exchange, on which she is absolutely right. The point made by the noble Lord, Lord Anderson of Ipswich, was picked up and dealt with by Professor Ekins in that report.

[Lord Carlile of Berriew (CB)]

My Lords—

[Lord Wolfson of Tredegar (Con)]

Before I give way, may I make one other short point? I respectfully suggest that state practice cannot give a court jurisdiction when it does not have it. All state practice can do is go to the interpretation of a treaty. It does not go to the creation of a power or a jurisdiction; that point may not be one to discuss as the clock strikes midnight, but now is a good time for me to give way to the noble Lord, Lord Carlile.

[Lord Carlile of Berriew (CB)]

I am grateful to the noble Lord. I draw his attention to the current, as of today, UK Visas and Immigration guidance, Judicial Reviews, Injunctions and Applications to the European Court of Human Rights. Where it deals with Rule 39, it says that

“a Rule 39 indication is similar to an Administrative Court … injunction but is”,

to state the obvious, made by the European Court of Human Rights. It goes on:

“Where you have been notified that a rule 39 indication has been made, you must … defer removal immediately”


and,

“where the person is detained, make sure this development is considered in relation to any decision to continue with detention”.

In other words, in their current guidance on the subjects that we are concerned with, the Government regard these Rule 39 rulings as binding. That is what the guidance tells the members of the public who have bothered to look at the Government’s own website this evening, as I have.