UK-US Co-operation on Using Atomic Energy for Mutual Defence

Lord Coaker Excerpts

Wednesday 23rd October 2024 Grand Committee

[The Minister of State, Ministry of Defence (Lord Coaker) (Lab)]

My Lords, I thank the noble Baronesses, Lady Smith and Lady Goldie, for their remarks and contributions to this debate, and their general support from the Front Benches. I will deal with some of the specific questions that they asked as I go through my remarks, but I welcome their support.

Moreover, I thank my noble and learned friend Lord Goldsmith for his chairmanship of the committee and the reports he has brought forward with its support. One can see how well thought of they are by the presence here of so many members of the committee. I welcome his introduction, and I am grateful for the well-made thanks he expressed to the MoD and officials. I am also grateful to him and his committee for their overall support for the two treaties before us. I welcome the reports, which I have read in great detail, including the appendices.

I will deal with the specific recommendations later in my remarks, but I take what my noble and learned friend said about his committee intending to look at the CRaG process. I have heard the remarks of different members of the committee about it, and I take the point made forcefully and correctly by the noble Baroness, Lady Goldie, about holding the Government to account on parliamentary scrutiny. I also take the point of the noble Lord, Lord Howell, that we are all parliamentarians, even if we are Ministers. It is an important point of principle.

I say to my noble and learned friend that, if I can help in that, by informing ministerial colleagues about the process as his work goes forward, I am very happy to do so. I cannot promise an answer, but I will certainly take it forward because that is the least that he and his colleagues on the committee should expect. I am grateful to noble Lords on the committee for their thoughtful reports, and I thank all noble Lords who have contributed to our constructive debate.

The 1958 mutual defence agreement underpins the defence nuclear relationship between the UK and the US, forming the basis for our co-operation on the safe and reliable maintenance of the UK’s nuclear deterrent. It is clear that co-operation under the MDA has been of considerable mutual benefit, supporting both countries to maintain operationally independent deterrents. It is in the national and security interests of the UK and the US to continue this long-standing agreement. The Prime Minister has been clear that the nuclear deterrent is the foundation of any plan to keep Britain safe. As our world has grown more volatile and insecure, we are reminded that the cost of our nuclear deterrent is a price worth paying.

That brings us to today. We have confirmed delivery of our triple-lock nuclear guarantee, which will upgrade our nuclear deterrent for future generations, and the crucial role that our nuclear co-operation with the United States will play. I think it was the noble Lord, Lord Udny-Lister, who mentioned the nuclear deterrent. It remains absolutely central to our defensive posture. We are committed to the modernisation of our deterrent and to the relationship between our countries.

I cannot agree with the points made by the noble Baroness, Lady Bennett, about the nuclear deterrent, but I am glad I live in a country where she can freely make those points and campaign for them. I think we all respect her for the way in which she does so. Without being patronising, I want to say that it is important that she continues to make those points and challenge those of us who do not agree with her. The democratic principle that she can make those points and be heard with respect in our Chamber is important.

Our nuclear co-operation with the US is underpinned by the mutual defence agreement, which allows us to exchange nuclear materials, technology and information. Its strategic value is self-evident. The amendment to remove the 10-year renewal provision and broaden the types of information exchanged under the agreement reflects the maturity and trust that characterises our relationship with the United States, while preserving the parties’ rights to agree amendments or terminate the agreement, in accordance with its terms. That is an important point to make.

I am grateful to the noble Lord, Lord Verdirame, for his support for the change to the agreement. It is important for us to recognise that the removal of the renewal provisions associated with Article III bis represent one of the key amendments to the treaty; the other being clarification of the types of information that can be exchanged under the agreement. As noble Lords will be aware, Article III bis, with its associated renewal provision, was first introduced into the agreement in 1959. The remainder of the treaty has endured since 1958. There is no clear programmatic reason in either the UK or the US that has driven this particular renewal period, which at times has varied from five to 10 years. Both the US and the UK agreed that removal of this renewal provision was a priority for this amendment, having regard for the fact that there is no operational or other requirement for it—reflecting, of course, the maturity and trust that characterises our relationship. I will come to the point about parliamentary scrutiny later in my remarks.

Our amendments to the naval nuclear propulsion clauses will consolidate the reciprocal transfer of equipment, information and material that will benefit our fleet. The amendments to the treaty do not impose any additional financial commitments on the UK, nor do they commit us to buying any goods or services from the US. Indeed, the UK’s long-running nuclear co-operation with the US under the agreement has reduced the cost of our nuclear deterrent capability. Recognising the concerns that some noble Lords here and outside have regarding our NPT commitments, I can reassure all noble Lords that all activity under the amended mutual defence agreement will remain consistent with the UK’s obligations under the non-proliferation treaty. Again, I note the support of the noble Lord, Lord Verdirame, with respect to that. In particular, as other noble Lords have noted—I want to make it clear the Dispatch Box for the Government—there is no movement of nuclear weapons or new nuclear explosive devices under the mutual defence agreement. Further, the agreement does not represent an indefinite commitment to the possession of nuclear weapons by the UK.

We remain committed to the long-term goal of a world without nuclear weapons in a transparent, verifiable and irreversible manner, with undiminished security for all. In answer to the direct question of the noble Baroness, Lady Smith, yes, we are preparing for the 2026 NPT review conference. We understand completely the concerns of the noble and learned Lord, Lord Goldsmith, and the committee, and as raised by a number of Members, regarding the periodic scrutiny of the mutual defence agreement. The noble Baroness, Lady Goldie, raised the point as well. In particular, we and I have noted the committee’s recommendation to provide a report to Parliament on the progress and operation of the MDA every 10 years. In principle, we are content to explore how we can satisfy the intent of the committee and a formal government response will be provided in due course. I say to the noble and learned Lord, Lord Goldsmith, and other noble Lords, that I will ensure that this happens.

The noble Lords, Lord Hannay and Lord Howell, and the noble Baroness, Lady Goldie raised another important point. I can reassure them, as I have said before, that any future amendments to the mutual defence agreement that fall within the scope of the Constitutional Reform and Governance Act 2010 would be subject to parliamentary scrutiny in the normal way.

I turn to the AUKUS naval nuclear propulsion agreement and note that a large number of your Lordships recognise its importance. They included the noble Lords, Lord Hannan, Lord Hannay, Lord Udny-Lister, Lord Bilimoria, Lord Stevens and Lord Howell, and the noble Baronesses, Lady Bennett, Lady Smith and Lady Goldie, and indeed my noble friend Lord Anderson. Many others mentioned the importance of this.

This recognises the importance of the Indo-Pacific. We have a NATO-first policy as a Government, but the Indo-Pacific remains important to us, through the signing of the AUKUS agreement. I just say in passing that His Majesty’s Government’s carrier strike group will be going to the Indo-Pacific next year, with many of our international partners, as an important statement of our intention to remain relevant in that part of the world and to reinforce the international rules-based order, human rights, democracy, the laws of the sea and so on.

Pillar 1 of AUKUS, which is a trilateral arrangement and will continue as such, will deliver a nuclear-powered, conventionally armed submarine capability to Australia. The phased approach of this will culminate in SSN-AUKUS, built and operated by both the UK and Australia. It is based on the UK’s next-generation design and incorporates advanced US technologies. It will bolster our national security as well as theirs, help us reduce costs and equip us with one of the most advanced submarine capabilities in the world, which I think is of immense importance.

The AUKUS naval propulsion agreement provides an essential legal footing for that co-operation. It is a key facilitator upon which we will negotiate a bilateral treaty with Australia that will govern how we collaborate to deliver Australia’s SSN-AUKUS programme. In answer to the noble Lord, Lord Udny-Lister, and others, this should create major trade opportunities for the UK, with billions of pounds of submarine components expected to be exported from our supply chains, which will benefit us as well as Australia and others. I take the point about the need to develop a skills programme that will allow us to take full advantage of those proposals. The noble Lord, Lord Stevens, alluded to this.

Pillar 1 is about Australia, the UK and the United States. Pillar 2 is incredibly important but perhaps less well understood and discussed than some of the other aspects. It deals with artificial intelligence, hypersonics, cyber and all these other technological, modern types of warfare that will take us into the 21st century and are hugely important. There are really important conversations going on, particularly with New Zealand, Canada, Japan and South Korea, about co-operation on pillar 2.

On nuclear non-proliferation, I say to the noble Baroness, Lady Bennett, in particular, that the AUKUS naval nuclear propulsion agreement is fully compatible with our national obligations under the nuclear non-proliferation treaty. Australia has reaffirmed unequivocally that it does not have and will not seek to acquire nuclear weapons. The agreement does not permit the supply of nuclear weapons to Australia by the US or the UK. On the contrary, it restates legally binding non-proliferation obligations and is fully consistent with the AUKUS partners’ commitment to set the highest possible non-proliferation standards, which the Prime Minister reaffirmed alongside President Biden and Prime Minister Albanese in September.

I thank noble Lords for their thoughtful consideration of these two separate agreements. Our sovereign nuclear deterrent and the AUKUS partnership are two central pillars, as this debate has recognised, of our national security and defence strategies. The Government are committed to strengthening both and building on some of the work of the last Government, to be fair, in establishing AUKUS. The treaties we have discussed today will enable us to do that. The unflinching power of our nuclear deterrent and the unrivalled strength of our military alliances and partnerships are what will keep the British people safe in our more contested and unpredictable geopolitical age. Our investment in our nuclear sector will help create 40,000 new defence and civil nuclear jobs by the end of the decade—highly skilled jobs that will spread opportunity across the UK.

Today, the defence nuclear supply chain already benefits over 3,000 businesses. This is an immense investment in cutting-edge science and technology across the country. Above all, it protects our security, protects what this country and our allies stand for and looks forward to the challenges of the geopolitical age in which we live. I thank the noble and learned Lord for the committee’s reports on these two treaties. I urge the committee not only to support this but to argue the case for it, in this House and with the British public at large. It is a major step forward for our country and our alliances and we should all take credit for that.

Hillsborough Families Report: Government Response

Lord Coaker Excerpts

Wednesday 6th December 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I entirely echo the tributes paid by the noble Lord and commend him, if I may, on a dignified and memorable speech marking the important occasion tonight.

As I said a moment ago, I have tried on behalf of the Government to explain our present position. I repeat that no door is being slammed tonight. We should continue to reflect and discuss—perhaps offline, if I may use that expression—what is the best way forward. At the moment this is the Government’s view but, if others can come forward and explain that there are ways in which we can and should go further, that is a discussion that we are duty-bound to have collectively, to see that we can get this as right as possible. When we get to the Victims and Prisoners Bill, we will discuss further the scope of the independent public advocate and other related issues. I thank the noble Lord very deeply for his contribution today.

[Lord Coaker (Lab)]

My Lords, my noble friend Lord Grantchester’s comments were memorable and moving. I associate myself with his tributes and praise to various elected representatives, the families of the victims and the supporters from all of Merseyside, both Liverpool and Everton and no doubt many others throughout the region. I thought his comments were very moving. I was not at the game but, as a former Nottingham MP and somebody who still lives in Nottinghamshire, the solidarity with Liverpool of Nottingham, Nottinghamshire and Nottingham Forest Football Club in light of the tragic events 34 years ago has always been a source of pride to me; my noble friend Lord Grantchester and others will know that.

We cannot have a situation in which it takes 34 years for people to get to this point. If it had not been for the bravery of the families and the way in which so many people doggedly fought for justice alongside them against the state, they would not have had any semblance of justice at all. We have already heard from my noble friend Lord Grantchester that there is hope that the Government will be made to go further. Hillsborough is the focus today but the Minister also mentioned Grenfell, Manchester Arena and many other public disasters. Why is it that ordinary people have to organise themselves to take on the power of the state to get justice? Hopefully, if there is one outcome from today, it is that we do not have a situation in which the might of the state seems to try to prevent ordinary people, who have suffered a huge disaster in their lives, getting justice. As we have heard so movingly from my noble friend and others, that just cannot be right and something has to change.

[Lord Bellamy (Con)]

I entirely agree with the noble Lord, Lord Coaker. Something—a combination of many things—went very badly wrong. As often with tragedies on this scale, it is a series of things going wrong that makes the ultimate result so difficult and tragic.

If I may express a personal view at the Dispatch Box, those families reflect and embody the true spirit of this nation and their communities. For that reason, we should be proud of them, salute them and commend them on their efforts. I know that does not bring their loved ones back, but we should do what we can to recognise their achievement.

In this instance, certain servants of the state, in certain situations, did not behave in the way that we would expect citizens of this country to behave. That has to be remedied and tackled, and we have to do our best to make sure that it does not happen again, as the noble Lord, Lord Coaker, has said. I associate myself with his remarks about the noble Lord, Lord Grantchester, and the magnificent speech he made on behalf of Liverpool and the families.

Illegal Migration Bill

Lord Coaker Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

[Lord Green of Deddington (CB)]

My Lords, I hope that the Minister when he speaks in a moment will explain what this is intended to deal with. It is only specific to these circumstances; is it that a certain number of lawyers are making a certain amount of money and he thinks that that is not helpful to the policy that the Government intend to put forward?

[Lord Coaker (Lab)]

My Lords, we support my noble friend Lady Chakrabarti in her defence of the rule of law and interim relief in cases involving the alleged expulsion of people to unsafe places. The Government were happy to support the court’s decision not to grant such relief in the current Rwanda cases, but now they want to take away this jurisdiction, forcing more applicants to Strasbourg pending a final UK judicial determination. If the Government are right that Strasbourg interim measures are not binding, Clause 54 is unnecessary. If the European Court of Human Rights is correct that they are binding, our amended Clause 1 should be enough to safeguard international law. With respect to those comments, I urge my noble friend if she is so minded to test the opinion of the House on her Amendment 152, which we would support rather than Amendment 153.

[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

My Lords, the Bill establishes a bespoke claims and appeals process which provides for a person subject to the duty to remove to challenge their removal to a safe third country. The duty to remove will be temporarily suspended while consideration is given to any suspensive claim or appeal resulting from the refusal of that suspensive claim. That is of itself an effective remedy for those subject to the duty to remove, and these measures will ensure that all suspensive claims raised in response to a removal notice under the Bill will receive full judicial scrutiny.

Clause 53 is critical to the success of the Bill in preventing the United Kingdom’s domestic courts from granting interim remedies in relation to legal challenges which would prevent or delay the removal of a person who meets the removal conditions under Clause 2. Were other human rights claims and legal challenges to be made, they would be considered after a person has been removed. Clause 53 provides a necessary and effective safeguard against the endless merry-go-round of legal challenges that those with no right to be here use to thwart their removal.

Amendment 152 tabled by the noble Baroness, Lady Chakrabarti, would incentivise people to obtain injunctions or submit judicial reviews to delay or prevent removal, negating the carefully crafted and balanced provisions we have set out in the Bill, which I have just described. We cannot allow that to happen. The amendment would substantially undermine the Government’s ability promptly to remove those who enter the UK illegally, and our overall objective of stopping the dangerous small-boat crossings.

Amendment 153 similarly seeks to weaken the Bill by striking out Clause 54, which relates to interim measures of the European Court of Human Rights. Let me be clear: it is not the Government’s intention to ignore a Rule 39 interim measure. Indeed, Clause 54 provides a clear framework for a Minister to exercise discretion where a Rule 39 interim measure is indicated. That will mean that a Minister may suspend removal in response to a Rule 39 interim measure but, crucially, is not bound by UK law so to do. This will be dependent on the facts of each case.

As I have said before, the Government take their international obligations very seriously. Nothing in the clause requires the Government to act in breach of international law. I reassure the noble Baroness that reflections within the Strasbourg court are ongoing, and we are closely following the process. We are confident that they will lead to meaningful change.

The inclusion of Clause 54 in the Bill reflects our concerns about the interim measures process. We believe that there needs to be greater transparency and fairness in the process to ensure the proper administration of justice. We cannot allow our ability to control our borders to be undermined by an opaque process which does not give the United Kingdom Government a formal opportunity to make representations or appeal the decision. This process risks derailing our efforts to tackle the people smugglers and stop people from making the dangerous, illegal and unnecessary journeys across the channel.

For the reasons I have set out, I therefore invite the noble Baroness to withdraw her amendment and, if she is minded to test the opinion of the House on Amendment 152 or 153, I strongly urge noble Lords to reject the amendment.

Illegal Migration Bill

Lord Coaker Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Lord Paddick (LD)]

My Lords, I am very grateful to my noble friend Lord Purvis of Tweed for his devastating critique of the government reasoning behind the measures in this Bill. As he said, the measures could have serious consequences for women and girls who have been trafficked, and he provided some examples of the sorts of numbers that might be involved. The facts presented by my noble friend appeared to show clearly that the system of referrals to the national referral mechanism is not being abused. As he said, much of the increase resulted from claims from those who were already legally in the United Kingdom.

I am very grateful—going back to Monday—to the noble and learned Lord, Lord Bellamy, for indicating something of the thinking behind this Bill as far as the Government are concerned. He said:

“All I am saying is that one should have this power; I am not necessarily saying the circumstances in which one should exercise it”.—[Official Report, 5/6/23; col. 1229.]


I am beginning to wonder whether this is a sort of remake of “The Wizard of Oz”, with these very scary things being put up front with very little behind them. In reply to what my noble friend said about the vulnerable women and girls who could be detained and then deported from this country, the Minister said it might not happen because, as he said, all the Government are saying is that the Government should have the power to do that, but they are not necessarily going to use it.

In relation to Schedule 1—the safe countries—many noble Lords have given graphic examples of why countries do not belong on a safe list. I have to say: what is the point of the list? As the noble and learned Lord, Lord Bellamy, said on Monday, in response to the noble Lord, Lord Cashman, who gave a particular example of a gay man being sent back to a hostile country:

“Secondly, and in practice, this is all predicated on the country being willing to accept them. At the moment, the only agreement we have is with Rwanda. There may well be others. I hesitate to give any commitment but it seems, if I may say so, most unlikely that the fears of the noble Lord are well founded. It is most unlikely that these postulated circumstances will arise in practice”.—[Official Report, 5/6/23; col. 1234.]


Well, if the Government are saying that each individual case will be considered on its merits, and if a country that is on the list is found to be not safe for that individual, what is the point of the list? What is the point if there is only one country—or potentially two countries—on the list to which the Government can return people? Is this just to try to scare the horses, with no substance behind it? That is increasingly what this Bill looks like.

[Lord Coaker (Lab)]

My Lords, I start, as other noble Lords have done, by thanking the noble Lord, Lord Purvis, for his introduction, the quality of his speech and the comments that he made, which deserve a full answer, and I thank all noble Lords for the detailed and important contributions that they have made.

In that light, I ask the Minister whether he will take back to Downing Street the fact that we do not need to read on the front page of the Daily Telegraph that the PM is set to overrule the Lords on boats Bills. The quality of the contributions that have been made in today’s debate show the importance of the consideration in detail of the legislation. Indeed, the Minister will know, as has been reiterated through the usual channels, that it is not the view held by every single noble Lord that the Bill should be blocked; indeed, we on the Front Bench of His Majesty’s Opposition have said categorically that we will not block the Bill. However, we will not be intimidated by having people, even the Prime Minister, attempting to intimidate us into not properly scrutinising, in a detailed and forensic way, the operation of the Bill.

We can see from the way in which noble Lords have put forward various points and considerations today that there are real questions to answer. I do not believe that the Government Front Bench here or the usual channels did that; to be frank, I think they were probably taken by surprise by it as well. But it is important that we in this House recognise that we have a role to play, which is to revise and improve legislation. The Government are then perfectly entitled to turn around and say, “We totally disagree and we’re not going to take any notice”, but we do not need to be lectured on how we should not attempt to revise it in Committee or on Report. That is an important point to make.

The other point to make as we consider this is for us all to wish the noble Lord, Lord Murray, well in his attempt to get the impact assessment out of the Home Office well before Report. It is too soon for me to ask him in a nasty way whether he has yet had any success, but even if I do not return to this throughout the Committee, I am sure a number of other Members will ask him how it is going—so I will start the process by asking the noble Lord how it is going with regard to getting the impact assessment out.

I will say, without repeating many of the points that have been made, that my noble friend Lady Chakrabarti summed up a point that has been reinforced by many noble Lords. At their heart, Clauses 5 and 6 and Schedule 1 give effect to Clause 2. In other words, the Government require a blanket ban on asylum claims and therefore require, in a blanket way, people to be removed from the country. I have said time and again that that removal, as we have heard from many noble Lords, is without any real understanding of where to or what the consequences will be. I ask again: is it a fact that the Government believe that the threat of deterrence overcomes or supersedes individual human rights? That goes to the heart of what we are debating, and is a point that the noble Lords, Lord Carlile, Lord Kerr and Lord Hannay, have made on numerous occasions. Is it the case that the Government are prepared to accept that, under Clauses 5 and 6 and Schedule 1, individuals may well be at risk of persecution or may have a well-founded asylum claim but, because they have arrived irregularly, that does not matter and they are going to be sent to wherever? Is that the case or not? We could do with knowing the answer to that.

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[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, with permission, I will first respond to the first point from the noble Lord, Lord Coaker, and confirm that the Government’s Front Bench was as surprised by the report in the Daily Telegraph as everybody else.

[Lord Coaker (Lab)]

Can I just confirm that the Minister means the Lords Front Bench?

[Lord Bellamy (Con)]

Yes, the Lords Front Bench—this Front Bench. I cannot speak for other colleagues, but I can assure the Committee that no one is attempting to intimidate this House. As I understand it, the Prime Minister is misreported in the Daily Telegraph—it is not the first time the press has misreported a politician—and the Government fully recognise the role that this House has to play in scrutinising the legislation. The Government’s duty, if I may say so, is to listen, reflect on what is said and respond as they think fit, depending on the strength of the points made and the Government’s general policy. I emphasise that there is no question but that this legislative process should be followed duly and properly throughout.

That said, and in relation to following established due process, as it were, we debated Clauses 5 and 6 in detail in Committee on Monday. With your Lordships’ permission, I will not repeat what I have already said in that respect and refer your Lordships to the record in Hansard. To the extent that some points have been repeated, I refer to what was said in the last debate.

If I may also respectfully say so, on various other points that have been raised—for example, in relation to Clause 2, to trafficking, to unaccompanied children and to agreements with third countries and so on— I will not go over the ground that has already been covered or is to be covered in debates on other clauses. These are matters that we are debating on another occasion—the legal rights and remedies, for example—so for today’s purposes I will concentrate on Clauses 5 and 6.

I should perhaps once again go over the ground of what Clauses 5 and 6 actually say. If I am right and your Lordships accept the analysis, I venture to suggest that at least a considerable part of your Lordships’ concerns may be reduced or laid to rest.

In simple terms, Clause 5 deals with two different groups. The first group are nationals, including persons holding an identity document, of the European countries listed in new Section 80AA of the 2002 Act, which are the EU member states plus Switzerland and Albania. If a national of one of those countries makes an asylum or human rights claim, they may none the less be removed unless there are exceptional circumstances. The exceptional circumstances, which again were referred to today by the noble Baroness, Lady Meacher, are defined in Clause 5(5). This part of the Bill is essentially the same as the structure that has stood for many years, including when we were part of the EU, with the addition of Switzerland and Albania. These are safe countries and, in the Government’s view, no reasonable objection can be made in relation to this group.

Now we have the second group, who are nationals of all other countries: those outside the European countries defined in new Section 80AA. What is the position in relation to those nationals? The first point to make is that if the migrant is a national of another country—with all respect to the Republic of Ghana, the Republic of Uganda or India, let us take Nigeria—and they make an asylum or human rights claim, for example because of a risk of persecution for their sexual orientation, they cannot be sent back to that country. That is clear from Clause 5(8), so a lot of the concerns expressed about persons being sent back to these countries will relate to nationals of those countries who do not want to be sent back to them. Unless others correct me, if they make a protection—that is to say, an asylum or human rights—claim, they cannot be sent back as nationals to those countries where they fear persecution. That is a very considerable safeguard.

Where can they be sent back to? They can be sent back only to another Schedule 1 country, but subject to very important conditions. The most important condition in this context is that set out in Clause 5(3)(d): only if there is reason to believe that they would be admitted to that country. In other words, it depends on whether we have an agreement with that country to take them back. That is not at present the case, except in relation to Rwanda, but it may in future be the case in relation to other countries.

To take a point raised by the noble Lord, Lord Kerr, or possibly the noble Lord, Lord Carlile, as to whether such future agreements would be—forgive me, it was the noble Lord, Lord Hannay—subject to parliamentary scrutiny, that is a matter for the future. I cannot commit the Government on that here at the Dispatch Box. However, I think your Lordships can be reassured that the availability of all kinds of remedies and the force of public opinion in this country would necessarily require a very full debate to take place before we made an agreement with another country. There is the constitutional safeguard of the constitution of public debate in that regard.

There is no indication that the countries mentioned in this debate—very understandably, Nigeria, Ghana, Uganda and even India—are likely to be, in any foreseeable future, places to which the relevant migrants could be sent. If we were ever to reach an agreement with another country, the Secretary of State has powers in Clause 6, in particular Clause 6(3), to exclude from that agreement persons of particular sexual orientations or with particular protected characteristics set out in that clause. That is a further protection against the fears noble Lords have expressed.

If all of that were to fail, it remains the case that the individual affected could make his suspensive harm application on the basis that he would suffer irreversible serious harm in that context. I think I can legitimately offer noble Lords reassurance that a great deal of the fears understandably expressed in your Lordships’ Committee rest on a particular view of the Bill that is not entirely correct.

I was asked by the noble Lord, Lord Paddick—it was implicit in most of the other comments—what Schedule 1 is for. I think the noble Lord, Lord Kerr, asked what the rationale of Schedule 1 is. The answer is that Schedule 1 is a reproduction, an amalgamation and a restatement of all the existing legislation from 2002 onwards, in which various countries over the years have been added as safe countries. For example, in 2005 the Labour Government added India on the basis that it was, in general, a safe country.

This also enables me to deal with the “in general” point, which has stood as a statutory point for the last 20 years at least. It might not be entirely within the active career of the noble Lords, Lord Hannay and Lord Kerr, but it has been on the statute book for 20 years. It has not so far given rise to any particular difficulties. That is the background to what we are considering.

In the future, it might be appropriate to keep Schedule 1 updated; it might be necessary to make changes from time to time. Let us cross those particular bridges when we get to them. At the moment, there is no practical possibility of Uganda, for example, accepting migrants who arrive in Dover into Uganda. It might be, to take a point raised by the noble Lord, Lord Carlile, that the existence of Schedule 1 or the failure to amend it, might be challenged in judicial review. If I may respectfully say so, it would be a somewhat adventurous case to compel a Minister to legislate or to amend primary legislation, but let us again cross those bridges when we get to them.

I hope that I have not taken up undue time and have covered most of the questions that I was asked. I am sure that I shall be reminded if I have not done so; I will do my best to answer them, if anyone reminds me.

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[Lord Hacking (Lab)]

My Lords, with apologies to the noble Lord, Lord Paddick, I will intervene briefly. I very much want to hear what is said by my noble friend Lord Coaker, who will be speaking next. I have only one very simple observation to make. Although I have attended most of the debates on this Bill I have not been able to get into the detail of this, and I certainly did not get into the detail of this problem until my noble friends Lord Davies of Brixton and Lady Chakrabarti, and the noble Lord, Lord Balfe, spoke. It is a very simple proposition: these provisions are just unworkable.

[Lord Coaker (Lab)]

My Lords, I start by thanking my noble friend Lord Davies for Amendments 57B and 58A, which I think are very worthy and have signed. They encapsulate the points that I and many noble Lords have made throughout the passage of the Bill so far, and no doubt will in the future, that it is not only issues of principle that concern many of us with respect to this but that many of the provisions are simply unworkable and raise serious questions.

If noble Lords have not done so already, it is worth taking up the point of the noble Lord, Lord Balfe, and reading Clause 7(12)(a) and (b), which is at the heart of this group of amendments. As the noble Lord, Lord Balfe, pointed out, the captain of a ship or aircraft, the manager of a train or the driver of a vehicle must conform to the directions of an immigration officer to detain an individual and stop them escaping. That is not only if it is reasonable to do so or if it is something you could understand them doing; they must do it—they have no choice. I do not know about some of the lorry drivers the Minister knows, but good luck with that. The serious point was made that the language barrier will be enormous, or at least significant, in many of those instances.

I have some specific questions, and they repeat and reinforce some of the points that have been made. Can the Minister explain how the captain of a ship, a lorry driver or a train manager—that is who we are talking about here—will detain these people? If the immigration officer requires them to detain someone, how are they meant to do that? As my noble friend Lady Chakrabarti and the noble Lord, Lord Paddick, ably put it, given that they are not warranted officers and do not have the powers of police officers or other individuals, what force can they use? “Excuse me, please do not get out of my lorry. I have been required by the immigration officers to stop you”—I am not sure that that would work, but let us say it does. But if it does not, and the person tries to get out, what can they do to stop them? I hope the Minister can explain that. The problem is that if they do not stop them, they can be prosecuted. One of the noble Lords who contributed said that it is not that they might be prosecuted but that they will be prosecuted if they do not conform. What happens if they try but the person escapes? Who decides whether they have tried enough—that they have gone to a sufficient extent to prevent the person leaving? Knowing the practicalities of this would be useful.

Clause 7 says “vehicle”, which means a lorry, but does it also mean a car or a campervan? If you are a driver of a car and somebody is in the back, do you have to stop them getting out on the direction of an immigration officer? Is it the same rules for children as for adults? The Minister will say I am nitpicking, but we are in Committee and that is the whole point of Committee. Whether for a lorry driver, train manager or car driver, we need to know whether the Government assume that you can do the same with children and what force is applicable with respect to children vis-à-vis an adult. There are, as I say, a significant number of questions.

The last point I want to make, which was raised by my noble friend Lord Davies, is about the detention period for which someone can force a person to stay in their train, on their aircraft or in their car. What is the reasonable length of time? How does it work? I think the Bill may say a few hours but what happens when that expires? The Secretary of State is then required to say that it can be extended. How does that work? How is the driver informed about that? On the practicalities, the noble Lord, Lord Balfe, made a really interesting point, which again sounds like nitpicking. If you are a train driver or a lorry driver, and you arrive somewhere and are required to stay there for 12 hours or 24 hours, what rights do you have? Are you required to stay there, or can you pass it on to somebody else to take over from you and carry on with that period of detention?

My noble friend Lord Davies and the unions, and others who have supported them, have raised a series of important questions about why the detail is so important and why many of us have questions about not only the principles of the Bill but some of the proposals in it and the workability of them.

[Lord Murray of Blidworth (Con)]

My Lords, Clause 7 includes requirements for various persons, such as owners and agents of a ship, aircraft, train or vehicle, the captain of a ship or aircraft, the train manager or the driver of a vehicle, to comply with directions for an individual’s removal from the UK. The noble Lord, Lord Davies of Brixton, has explained in his Amendments 57B, 58A and 71B that he seeks to probe the legal obligations these provisions place on transport operators.

If I may, I will address the point from the noble Lord, Lord Coaker, about whether this relates to private vehicles. The answer is that it is related to scheduled or chartered services, not individual cars or campervans.

I would like to make it absolutely clear that the Government are not making transport workers or operators undertake immigration functions. Clearly, I am in agreement with much of what we have heard during the debate on this group. That is not something we would want to do. Nor are the provisions in Clause 7 about commandeering vessels or vehicles, as was suggested in the debate on the last group; we can and do make arrangements for removal by scheduled services or chartered services. Nor are these new requirements; they reflect provisions that are already in place in Schedule 2 to the Immigration Act 1971 for arranging the removal of persons not subject to the new duty in the Bill but otherwise liable to removal from the UK.

Having placed a person on board a ship, aircraft, train or vehicle for their removal from the UK, it is only reasonable that the Secretary of State or an immigration officer may require the relevant captain, manager or driver to prevent the person disembarking while that vehicle, ship, aircraft or train is still in the UK, and effectively keep that person in their custody until they have reached the destination. Clause 9(2), which is the subject of Amendment 58A, then applies the relevant existing criminal offences in Section 27 of the Immigration Act 1971—which already apply to carriers who fail to act under instructions to remove a person under that Act—to instructions to remove a person under the powers set out in this Bill.

Illegal Migration Bill

Lord Coaker Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[Lord Paddick (LD)]

My Lords, we support all the amendments in this group, including the probing amendments tabled by my noble friend Lady Hamwee. It is quite clear from all sides of the Committee that just listing countries as being safe is not sufficient. The Government have already acknowledged that some countries are not safe to remove women to, for example. Therefore the principle is established that a country may be considered sort of generally safe, but not safe for particular individuals, whether because of their gender or sexual diversity. The noble Lord, Lord Carlile of Berriew, introduced amendments aimed at that. The amendment in the name of the noble Lord, Lord Alton, would ensure that victims of trafficking and modern slavery are not removed to a country where they would not be safe. As both my noble friends said, when you contrast the list of countries in Schedule 1 with the Government’s advice to travellers, for example, there is clear inconsistency between the two, or at least a case for the Government to answer in terms of using the countries in Schedule 1 as a blanket list rather than looking into the specific problems or dangers faced by people who belong to different social groups.

The other concern I have is, if people who arrive by means of what the Home Office calls irregular routes are not to have their asylum claims considered at all, how will the Government know whether the individual concerned is, for example, gay or a lesbian and therefore will be put in danger if they are removed to a country that clearly persecutes people from those groups? If there is going to be no consideration of the merits of an individual’s claim, how can the Government be certain that the person is going to be safe if they are removed to one of these countries?

[Lord Coaker (Lab)]

My Lords, this is another important group of amendments and we support all of them. I remind noble Lords of the importance of this. Since the Bill assumes that everybody arriving irregularly will be detained and automatically removed, where they are going to be removed to becomes important to us all, and for us to have some consideration about the criteria which the Government will use is of particular importance. Can the Minister confirm that deterrence does not trump human rights with respect to removals? That was the implication of what his noble friend Lord Murray said earlier—that deterrence is everything and something that has to be achieved irrespective of any other consequence.

Since the Government always say that they are on the side of the British people, let me be controversial for a moment. With regard to the issues that we have been discussing in this group of amendments, I do not believe that the British people believe that deterrence should trump human rights. Let us make this real. I have looked at this, as other Members have done, in relation to various LGBTQ rights in countries that the Government say will be safe to send failed asylum seekers to through the Bill. Let us take the case of Nigeria; as my noble friend Lord Cashman has said, you can be flogged for being gay there. In Malawi, it is up to 14 years’ imprisonment with or without corporal punishment. In Liberia, it is a maximum of three years in prison.

Can the Minister tell us, on behalf of His Majesty’s Government, whether a failed asylum seeker who is gay would be removed to those countries? In the end, that goes to the essence of what we are talking about. I want to know, and the British public and this Chamber want to know: will such an individual—or anyone in circumstances detailed in the helpful amendments tabled by the noble and learned Lord, Lord Etherton, the noble Lord, Lord Carlile, my noble friend Lord Cashman and the noble Baroness, Lady Bennett—be deported, or not? I do not think they should be deported in those circumstances. I do not see how those countries can be included in Schedule 1; I do not understand that at all. I do not believe that the Minister would want anyone —a female asylum seeker, for example, who has failed according to the terms of the Bill—to be returned to a country where they would be persecuted. Would such a country be included in Schedule 1? Rather than these general terms, let us see the specifics of what would happen.

Some noble Lords who have been Members of the other place will know that people will often say in general terms, “It’s an outrage”, or that “It’s about time those people were sent back” or “dealt with”. Then, the individual case—the individual family, the individual asylum seeker, the individual gay person—comes up and that very same community launches a campaign to stop them being deported. You can see it happening up and down the country because people are genuinely decent. When the human consequences of a piece of legislation are made clear, that general enthusiasm and support dissipates because they understand its consequences.

When the Minister answers the various questions of noble Lords, I want him to answer the specifics about an individual gay person who has failed as an asylum seeker under the terms of the Bill. Will they be returned to the sorts of countries and the sorts of persecution that other noble Lords and I have outlined?

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I am extremely grateful to all noble Lords who have put forward amendments in this group and contributed to this debate. The Government completely understand the sincerity and thought that has gone into these amendments and we are grateful for those observations but, for the reasons that I hope I will be able to explain, the Government do not feel that we should accept the amendments.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, the Government are always prepared to talk to anybody who would like to put forward various ideas. We will come to the question of legal advice and legal protections and procedures in a later group, where I will be very happy to elaborate on the Government’s plans in that respect.

[Lord Coaker (Lab)]

The judge in an Upper Tribunal would no doubt be trying to determine the will of Parliament in deciding the issues before us. In what circumstances do the Minister or the Government believe a judge would send a gay individual going to the Upper Tribunal as the result of a suspensive claim back to Nigeria or a similar country?

[Lord Bellamy (Con)]

I am not sure I completely understood the question. It may well be that in practice there will be various countries to which people with certain characteristics will never be sent because it is well known either at the level of the case worker and the Home Office or at the level of the judiciary that such a claim would give rise to a risk of “serious and irreversible harm”.

[Lord Coaker (Lab)]

Let me try again for the Minister. It is often said in court that judges were uncertain as to the intention of Parliament and it was not clear in the legislation what Parliament actually meant and therefore there was ambiguity. For the sake of avoiding any ambiguity, let us say that a suspensive claim goes to the Upper Tribunal, where the judge will determine whether that claim is right and whether an individual should be sent back to a particular country. So that the judge in the Upper Tribunal is not in danger of misreading the will of Parliament, I do not think that Parliament would want a gay individual who had failed because of the terms of the Illegal Migration Bill to be sent back to a country such as Nigeria which flogs gay men. I am asking the Minister of the Crown to say what the Government’s attitude is towards gay men in those circumstances, so that a judge in an Upper Tribunal will know what the intention of Parliament was. I hope that was clear enough for the Minister.

[Lord Bellamy (Con)]

My Lords, the Government’s position is that no one should be sent back if to do so would lead them to face

“a real, imminent and foreseeable risk of serious and irreversible harm”.

If that is the position in relation to gay men in Nigeria, there should be no difficulty in them satisfying those conditions.

Imprisonment for Public Protection Action Plan

Lord Coaker Excerpts

Thursday 25th May 2023 Grand Committee

[Lord Coaker (Lab)]

My Lords, it is pleasure to follow the noble Baroness, Lady Burt. I know that she has spent considerable time campaigning on this issue, and I agree with many of the important points that she made. I congratulate the noble Lord, Lord Moylan, on this Question for Short Debate. To take up the point made by the noble and learned Lord, Lord Brown, I think that the noble Lord, Lord Moylan, needs to be congratulated because this is one of those issues that you hear being debated with people making all sorts of irrational comments. It is important that we have tried to discuss this in a calm and measured way. One hopes that quicker progress can be made through the action plan that the Government have put forward.

To take up my noble friend Lord Blunkett’s comments, and those of the noble Lord, Lord Moylan, I see some hope in what seems to be a change of attitude by the Secretary of State. That gives us some expectation that things will change. As the noble Lord, Lord Moylan, pointed out, the use of words such as “stain” and “iniquity” signifies a change of approach, and one hopes that, as a result, some of the concerns laid out by the noble Baroness, Lady Burt, will be addressed.

The challenge for the Minister is that the action plan has to be actioned—that is the key point about it—otherwise it is a good action plan that we all agree with, but what difference will it have made? It is the famous “So what?” question. My noble friend Lord Blunkett said that he will write to the Minister and make some points. It would be interesting to see them; if appropriate, perhaps we could see that correspondence and the Minister’s answers.

Countless testimonies and studies have shown the link between serving an IPP sentence and deteriorating mental health, self-harm and suicide. As the right reverend Prelate mentioned, 81 IPP prisoners have taken their own lives while in prison. In 2022 alone, there were nine suicides—the highest number in any year since IPPs were introduced. Does the Minister agree with the Royal College of Psychiatrists that

“Mental Health services in prison are not equipped to manage the complexities of many of those subject to IPP in prison and additional resource and development of expertise is needed”?


Can the Minister outline what action is being taken to deal with these mental health problems?

Alongside that, as the Chief Inspector of Probation outlined, most recalls to prison arise from non-compliance with licence conditions rather than from new crimes. Non-compliance often results from homelessness, a relapse into substance or other misuse, and a lack of continuity of care between pre-release and post-release service provision. The noble Baroness, Lady Burt, made the point that, in short, failing services are leading to unsuccessful licences. This means that we are setting up too many IPP prisoners to fail. They return to custody in a system that sets them goals that it does not then allow them to meet. Will the Minister commit to accept recommendations from the forthcoming inspection of recalls that stress the need for proportionality and attention solely to serious risks in making recall decisions?

We have to also recognise—again, other noble Lords have raised these points—that problems lie not just with IPPs. Even if individuals on IPP sentences are eventually released on licence by a Parole Board, to keep us safe we still rely on a functioning probation system to ensure that those individuals comply with their licence conditions and do not lapse back into the behaviours that made them a risk originally. Could the Minister comment on how the action plan will help ensure that the probation system functions in a way that supports IPP prisoners?

The statistics that the noble Lord, Lord Moylan, read out at the beginning were stark and deserve repetition. Some 2,892 people are still subject to the IPP regime; 1,394 have never been released, and 1,498 are on remand. It is no wonder the Secretary of State called this a “stain” on our justice system. Something certainly needs to be done.

Importantly, in reference to the point from the noble and learned Lord, Lord Brown, I note that the discussion about IPPs often takes place with respect to public protection. All of us agree that there is a need to consider public protection; it would be ludicrous to say that it is not an important consideration. However, as my noble friend Lady Blower and other noble Lords mentioned, this country is about justice and a system that works and is consistent with the values of our democracy and country. It is right to say that the public need to be protected in this situation, but individuals, however difficult their crimes are, also deserve justice. As such, there needs to be reform and change quickly.

National Security Bill

Lord Coaker Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, we are being asked to approve something that relates to regulations that we have not seen, and we would ask the Government to review the way in which they are approaching the passage of this part of the Bill. We need to see not just draft practice or draft regulations but the regulations themselves.

The way in which this part of the Bill has been generated—and I do not want to repeat a discussion that we had two days ago—means that there is a great deal of uncertainty about what is intended. I hope that the flexibility that was indicated by Ministers on Monday will be extended to how such information is disseminated. I hope that we will get an undertaking that, before Report, and not on the day that Report begins, we will see the regulations and other documents that will indicate the architecture and detail of whatever parts of FIRS are going to be retained.

[Lord Coaker (Lab)]

My Lords, I agree with what the noble Lord, Lord Carlile, has just said, and I shall say a bit about it myself, in a few remarks on the government amendment. As the Minister said, the amendment clarifies the power in Clause 77(1)(b) and deals with the publication and disclosure of information provided by the Secretary of State under Part 3 on registration. Can the Minister say a little about what is not to be published? As the noble Lord, Lord Carlile, has just pointed out to the Committee, all this is to be done by regulations—and, I emphasise, done by regulations under the negative procedure.

Information provided by the Minister about foreign activity arrangements and foreign influence arrangements could, as the DPRRC said, be both politically and commercially sensitive. There will also be practical matters of significant political interest around these matters, given their relationship to national security. What sort of thinking is going on about what may or may not be published? Will those whose information is to be published be told in advance of publication and have any right of appeal? Again, as the noble Lord, Lord Carlile, said, why should Parliament not be able to have a more direct say in what sort of information should be published? That point was made by the DPRRC, which called for these regulations to be made, at the very least, under the affirmative procedure, to give at least some degree of scrutiny for this Parliament. I ask the Minister again to reflect on why negative procedure is being used for these regulations and not, at the very least, affirmative.

[Lord Murray of Blidworth (Con)]

I thank both noble Lords for those contributions. I can, of course, reassure the noble Lord, Lord Carlile, who will be aware that my noble friend Lord Sharpe committed in this House that a policy statement would be published ahead of Report.

On the points raised by the noble Lord, Lord Coaker, clearly the drafting of the regulations will necessarily follow the shape of the scheme, which is reflected in the final version of the statute. Therefore, it would not be appropriate at this stage to have draft regulations to consider. As to the appropriate method by which the regulations should be approved, it is the Government’s view that the negative procedure is appropriate for these minor and technical regulations, given what they do to enable the disclosure of information provided to the department in accordance with the scheme.

Therefore, for all those reasons, we submit that this is a minor and technical amendment that simply clarifies the purpose of the power, and that it is intended specifically to enable the Secretary of State to make provision through regulations for the onward disclosure of information registered under FIRS, and I therefore ask the Committee to support this amendment.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I note the noble Lord’s views on the topic, but we are where we are. Obviously, the department will take away what he says and endeavour to meet his reasonable request.

[Lord Coaker (Lab)]

I say to the Minister, before he sits down, that in view of what the noble Lords, Lord Pannick and Lord Carlile, have said, it is not satisfactory. We do not have a policy statement, we cannot see the regulations and, when the regulations are passed, the Government will pass them through the negative procedure. I would have thought, at the very least, given the worries and concerns that have been raised, that the affirmative procedure, as the Delegated Powers Committee said, in these circumstances in particular, might be something the Government would consider. I ask the Minister to reflect on that.

[Lord Wallace of Saltaire (LD)]

I hope the Minister will agree to draw the attention of his department to the debate held in this House last week on delegated legislation and to the very strong sense across the whole House, including on his Benches, that this House is meeting a Government who give us less and less information about regulations and prefer to leave more and more out of Bills so that Ministers may act as they are. This is an abuse of Parliament and should not be pursued further. That message is particularly important for a Bill such as this, and the Government should consider it.

--- Later in debate ---

[Lord Faulks (Non-Afl)]

My Lords, I add a couple of queries which I hope that the Minister can help with.

Clause 83(5) provides that:

“Where the court would award damages … of a particular amount, the court must decide whether, in light of its consideration of the national security factors, it is appropriate for it to reduce the amount of damages (including to nil).”


How is a judge supposed to decide whether it is appropriate? The national security factors are listed but perhaps, by way of an example, some illustration can be given to the Committee to help us understand what this legislation has in mind. Incidentally, I note at Clause 83(7)(b) the various other defences in common law to which the noble Lord, Lord Marks, referred—that is, ex turpi, volenti and contributory negligence—are reserved anyway. The question is whether anything further is needed. An explanation of why these provisions are needed would certainly help the Committee.

[Lord Coaker (Lab)]

My Lords, I thank the noble Lords who have spoken. I very much appreciated the introduction by the noble Lord, Lord Marks. It was very carefully explained and helpful to the Committee. The only thing that I will disappoint him with is that, having heard his Latin pronunciation, I have decided that mine is not as good and so will leave it out.

Some of my remarks will be more general but none the less will ask the Government for justification—with respect to the clause stand-part debates rather than the individual amendments. The noble Lord, Lord Faulks, is absolutely right to ask what the court should take into consideration when determining what the level of damages should be, if it is to reduce them, even down to nil. The Minister in the other place talked about care costs. That is my point. It would be interesting to know what the Government’s thinking is. My remarks are mostly not as specific as those of the noble Lords, Lord Marks and Lord Pannick, but raise some of the more general points that the Government need to justify these clauses and to clarify why we must agree them in their current form. I am very grateful to my noble friend Lord Hacking, whose stake in the ground gives me hope for the future and makes me realise that I am not alone when I stand here. I appreciate his support.

Amendment 105A, moved very ably by the noble Lord, Lord Marks, raised a number of important concerns around the provision—or reduction in provision—of damages in national security cases, including, as the amendment probes, whether a public body could avoid accountability by categorising proceedings as national security. As I said, I want to address the clause stand parts but also Schedule 15, to get some clarity around the Government’s thinking.

Before anybody reading this in Hansard categorises it in a way that it should not be categorised, I make it clear that none of us in this Committee or indeed in this Parliament wishes to see damages used to finance terrorism or in any way to allow individuals or groups to benefit from them. That is the motivation behind Clause 83 and one that none of us could disagree with. However, it is important to consider how we do that. As the noble Lord, Lord Pannick, said, it is particularly important for us to do this because many people read our proceedings and so it is important that they understand the debate. The Explanatory Notes point out in stark terms, and more clearly than the Bill does, that:

“Clause 83(1) provides that the duty applies where the liability of the Crown has been established”.


The JCHR report uses even more strident language. It says this applies where the Crown, Government or state—whichever you want to call it—has been proven in court to have “acted unlawfully”. We are talking about a situation in which damages are reduced in cases where the guilt of the Crown has been proven. That is no doubt why many of us will tread carefully in this area: the state has been proven guilty and we are passing legislation that would enable the Government to further reduce damages. This is difficult territory but, with respect to terrorism and damages, it is none the less territory that we need to go to. It is true that certain human rights cases are excluded—those brought under Section 7(1)(a) of the Human Rights Act 1998—but other cases are not. As I have said, even where the court has established that the state is in the wrong and the state has been found guilty of wrongdoing with respect to an individual, and the clause applies, the state can seek to reduce those damages.

How can the Government reassure the Committee that this clause cannot be used to allow the state to avoid accountability? As I have said, of course public money should not be used to fund terrorism via the damages awarded but, as the noble Lord, Lord Marks, pointed out, the clauses seem to be drawn so broadly that potentially deserving victims may be excluded. How will the Government avoid that and ensure that the limitation of damages applies only to those who have committed wrongdoing involving terrorism, which I understand to be the point and purpose of the amendment of the noble Lord, Lord Marks, and the amendments of others?

We do not wish to see innocent bystanders caught up in a terrible situation to be excluded, but the current drafting of these clauses at the very least implies that, if there is any evidence related to any unspecified national security or intelligence services issue, the damages could be reduced or taken away completely. The Law Commission points out that this could lead to the state introducing national security evidence to avoid paying damages under the provisions of the Bill laid out in Clause 82(2)(a). Can the Minister detail for the Committee why these provisions are necessary? What additional powers do they make available to a court? Can a court not already take into account whether a claimant is deserving or not and whether there are concerns about the potential misuse of any such moneys or damages awarded to them? A point raised in the other place is that this must not be a slippery slope. Could the requirement to reduce damages from terrorism, because of our obvious horror, ever be extended to other areas where we are also horrified—for example, paedophile cases?

I have other points and questions for the Minister on Schedule 15 and other clauses in this group. Are these provisions based on experience from some existing cases, where the Government think this has happened and needs to be stopped, or are they being introduced in anticipation of it happening in the future? If they are not based on existing cases, what are the limitations of the existing legislation, on which the Government have evidence that they can present to the Committee to show why we need this new legislation?

In the other place, for example, the Government were asked what the problem is with existing legislation related to the financing of terrorism. We already have legislation that deals with reducing or removing damages that are used to finance terrorism. I think the noble Lord, Lord Pannick, also made that point, unless I misunderstood.

The freezing orders under Schedule 15 are possible for two years and can be renewed for a further period, before leading to potential forfeiture. Can the Minister explain what the term “real risk” means, for example in paragraph 1(4) of Schedule 15? If it is a standard of proof, as real risk is in the future, how will the court determine it? Will the court require actual proof to allow freezing orders to be made, or will it make a subjective judgment about something that may happen, the real risk that may occur, in the future?

Her Late Majesty Queen Elizabeth II

Lord Coaker Excerpts

Saturday 10th September 2022 Lords Chamber

Having watched that magnificent and brilliant speech of our new King last night and at the Accession Council this morning, I will be as proud tonight to take that oath of allegiance as a subject of King Charles III as I was to take it 60 years ago to Queen Elizabeth II. His Majesty has long been a hero of mine, ever since I saw him in the full-dress uniform of the Colonel-in-Chief of the Gordon Highlanders, a uniform I was pleased to wear, but merely as a junior officer in the 51st Highland Volunteers. There is no one better qualified to continue the onerous task of our Head of State. His experience extends across the whole range of our national life and the difficulties facing us here in the United Kingdom and the world. As Tony Juniper, the head of Natural England, has said, King Charles is “possibly the most significant” environmental figure of all time. As the new Carolean era begins, I wish Her late Majesty eternal rest in peace alongside her rock, His late Royal Highness Prince Philip, the Duke of Edinburgh. God save the King.

[Lord Coaker (Lab)]

My Lords, it is a sad privilege to stand up and address the Chamber as we come towards the end of this tribute. I start by paying respect to the wonderful way in which the Lord Privy Seal opened the debate, followed by my noble friend Lady Smith, the noble Lord, Lord Newby, and the noble and learned Lord, Lord Judge, who set the tone for the whole debate. I do not want to repeat all the various comments that have been made about the service that the Queen has undertaken through her long reign; that can be read in Hansard at great length. I shall just highlight one or two things before making a general comment about why the Queen was and is held in such high regard.

The first thing is her acquaintance with the military, as we saw with her service during the war, but also her long commitment to the Armed Forces, as the noble and gallant Lord, Lord Stirrup, will know as well as anybody. She always championed the veterans and our Armed Forces at great length through the whole of her life, which is of huge significance and speaks to the whole nation.

I also want to refer, as did the noble Lord, Lord Alderdice, my noble friend Lord Kennedy and others, to the work she did with respect to Ireland. The noble Lord, Lord Caine, will know better than anybody about what she did and the work he did around that time in Belfast. It is easy to say, as the noble Lord, Lord Alderdice, will know, “Wasn’t it fantastic that our Queen went to Ireland, went to Dublin and then went to Belfast?”, but just think, as the noble Lord, Lord Caine, will know, about the controversy that arose at the time and the hostility she received. The leadership and courage that she had to show to do that should be recognised by all of us.

That was an example of how, time and again, she did not always take the popular route; she sometimes took the route that was necessary for the greater good. Just think of her going to Dublin, not just wearing green and speaking in Gaelic, but visiting the memorial for those who were killed in the Easter 1916 rising. It is unbelievable that a British monarch should be welcomed to do that. Then she went to Belfast. The noble Lord, Lord Caine, was at the Lyric Theatre, I believe, when she shook the hand of Martin McGuinness. Unbelievable. She got hostility in Belfast for doing that, but she did it in the cause of peace and reconciliation and the belief that she had to use the authority of her office to move that on.

That is the nature of the person we had as our monarch, and that is why it is so important for us to give voice to all that in this tribute and in the tributes over the last two days here and in the other place. It is not repetition when people speak of their own experiences. It is not an unnecessary thing to do. It is an important statement of something that is important to our public life, both now and in the past.

I will say why I think the Queen has been so revered and why her loss is so shocking, but also something about what we should learn from her to inspire us for the future and what her legacy to us should be. The big thing about the Queen is the values she lived and stood for. People have heard me say this time and again, but some of those values, of family, community, patriotism, country and individual responsibility, are almost regarded as out of fashion and somehow irrelevant to the modern age, not something that we should all adhere to and teach our children but which we should leave out from our schools and that our country should not champion any more—that we should not say to the rest of the world, “This is what we are proud of about our country.” We had a monarch who symbolised all those values and principles. Because of that, she spoke to the inner core of the British people, the people of the Commonwealth and beyond. That is why people are so saddened and shocked, because they do not want to see those values die with her.

For me, and I think for our Parliament and us as representatives—whatever that means within a democracy—our legacy to her should be to say, “Ma’am, we’re going to take that forward and ensure we fight for it as well.” That is what the country is looking for in its leadership. Instead of division, people want harmony. That, Ma’am, should be our legacy and our epitaph to you.

[Baroness Neville-Jones (Con)]

My Lords, I think the noble Lord, Lord Coaker, spoke for us all when he pointed to the moral courage our late sovereign showed.

When I debated with myself about whether I would speak in these tributes to Her late Majesty the Queen, I found that I had an absolutely overwhelming desire to say thank you for her life of service, and her dedication to the welfare of the United Kingdom and to the well-being of its inhabitants. There have been many outstanding contributions. Given the hour, I will not fall into the habit of insisting on repeating all these sentiments myself, but I must say that I agree with what this House feels about the contribution the Queen made to our national life and destiny.

The Queen brought good cheer—one of her characteristics. I am old enough to have known another sovereign. I was 12 when the Queen ascended to the throne. Britain was a pretty grey place. Something lifted. First of all, we saw the wonderful dress she wore, which was made with an incalculable number of pearls that came from various parts of what was then still the empire to be sewn into it. From this rather grey world we began to see something that was rather lovely and cheery. She was very beautiful. It was a great occasion. My family, like many in the United Kingdom, bought its first television set to watch the proceedings. So she started with a tremendous show, which I think greatly improved the morale and general happiness of our society.

The other thing I want to say about the way she behaved over all these years is that she was a tremendous force for inclusion in our society. Little people mattered to her—that was widely and instinctively understood and much appreciated by the general public. Very ordinary people have been saying these very complimentary things about her, and are spontaneously repaying the compliment by covering the boundaries of Buckingham Palace, Balmoral and the grass of Green Park with a carpet of flowers. I do not know whether noble Lords have seen them on the television; it is extraordinary.

We also witnessed something else. Not only did people see that the Queen represented us collectively, which they much appreciated, but many in this society felt they had an individual connection with her. They did not know her in the conventional sense, but she connected with us, and put a lot of effort into doing so. One should not imagine that this is somehow a gift handed to you—you have to work at it. It is hard work to make connections, but she most certainly did. That is one of the reasons why she was also so effective in the Commonwealth. People understood that she had thought about them and the situation, and here was the contribution she was willing to make.

Many Members of the House have recounted stories of personal encounters with the Queen. I am not among those who could claim to have known her, though I did meet her. On one occasion, there was a private sitting at which I was present—a birthday party where we were both guests. It was held in the London aquarium. As she arrived, the Queen looked round at the colourful goldfish in the tanks near the entrance. “I haven’t been here before”, she said. I happened to be standing just near her, and said “Your Majesty, when you get much further into this place, you will find that it contains a lot of sharks.” “Oh”, she said, “How like real life”.

I will make just one more point. Like most Members of the House, I watched His Majesty the King speak last night, when he made his own public tribute to his mother and talked to us about his future role. He made some very perceptive comments and important commitments on how he would seek to act. Some Members have said they think the Queen will be a hard act to follow. I am sure that that is right, but I thought that our new monarch had all the empathy that will be needed for him to be an extraordinary, commanding presence in the country and that he will communicate with us as effectively as his mother. God save the King.

Nationality and Borders Bill

Lord Coaker Excerpts

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, I pay tribute to the noble Lord, Lord Dubs, for his tireless work on family reunion, born out of his own personal experience. I also pay tribute to my noble friends: my noble friend Lady Hamwee, who ran the first leg with her Private Member’s Bill, before handing over to my noble friend Lady Ludford.

It is better for families to be together, not just for their own welfare but so that they can look after each other, as my noble friend Lady Hamwee had just said, rather than being looked after by the state. We strongly support Amendment 112. Amendment 113 would provide a mechanism for those unaccompanied refugee children who had reached an EEA country and who have a family member in the UK to be reunited with that family member. Amendment 114

“would require the Government to produce a negotiating mandate to seek reciprocal arrangements, with other states, on safe returns and safe legal routes.”

I am guessing that would be something akin to Dublin III. Amendment 117 from the noble Lord, Lord Dubs, would change the Immigration Rules to allow people currently in Europe to come to the UK to seek asylum—effectively be given a visa—if they have a family member in the UK. This is a subset of my noble friend Lady Hamwee’s Amendment 118 in the next group. We support all these amendments.

[Lord Coaker (Lab)]

My Lords, it is a privilege to contribute again to the deliberations in Committee on this important Bill. We agree with all the amendments in this particular group, but I shall speak specifically to Amendment 114 and then Amendment 113.

On Amendment 114, I join the noble Lord, Lord Paddick, and I am sure all other Members of the Committee, in paying tribute to my noble friend Lord Dubs for the work he has done over so many years. He is an example and inspiration to us all, with respect to family reunion. The reason I want to highlight Amendment 114 is to lay out the importance of international action on this. That is why the refugee convention is so important to us. We saw the collapse of the world order, if you like, after the Second World War. As was mentioned by the noble Lord, Lord Alton, earlier, the world back then, of all political persuasions and ideologies, did not all split asunder and pull the drawbridge up on their own countries; they said that this was a common problem of such massive importance that they had to work together to achieve anything.

The 1951 refugee convention is not an old document but still speaks to us and is relevant today. It may have been written in 1951, 70-odd years ago, but it speaks as resoundingly to the people of the world today as it did then. Why do I say that? Like many Members of this Committee, I think Amendment 114 is important because it talks about the United Nations and it talks about international actions. It is a probing amendment —we are not asking the Government to accept it—but it is using the Committee to put pressure on the Government to say, as a senior global power, a member of the United Nations Security Council, a senior member of NATO, a power that has resonance across the world—notwithstanding some of the reputational damage that I think this Bill is causing—that we make a difference. What we say makes a difference.

In Syria, Iraq, Afghanistan—all of those countries—their refugee problems dwarf ours, let alone if we consider those in Africa. As I think I mentioned before, I went to Angola, where they had a refugee camp of a million people—some of the poorest people in the world dealing with some of the most difficult circumstances. On the border of Syria and Jordan, as I think I mentioned before, there is a huge refugee camp with people pouring across the border to escape war. Those countries—Jordan and Turkey—did not turn their back on those people; they worked to try to deal with it.

What I am saying about that international response, that international action, such is the difficulty that we are facing across the world—for all sorts of reasons, and we can debate why that is and why that is not—is that if we do not join together, we have got real problems in actually sorting this out. It is beyond the capacity and capability of one country to do that, notwithstanding the attempts. I say this: there will be a nationality and borders Bill 3 and a nationality and borders Bill 4 in trying to deal with this if the UK Government try to deal with it on their own.

[Lord Green of Deddington (CB)]

I entirely agree about the appalling conditions in these refugee camps and the huge number of refugees that are being dealt with. The question that I and others ask is: how can we best use the resources that we can give to the people who really need it? How much more effective would it be to get aid, food and medical attention into these terrible camps, rather than spending huge sums of money on children here who cost the same as a term at Eton?

[Lord Coaker (Lab)]

Of course that is right. That is why there was such a row about the cut in the aid programme. It is why we all believe that of course we have to try to prevent war, famine and all those things. Not to do that would be ridiculous. The sources of many of our problems are war, famine and disease, and all of those things, so of course we have to prevent them.

However, it is also important in the debate we have in this country about asylum and refugees—not immigration—to stand up to the view that “We take the lot”. The idea that it is this country that has to deal with the situation, no other decent country in the world does it, we are the country that has to take them all and we are the weak link in it all is just not true, however unpopular it is to say so. Sometimes the way that you change public opinion is by arguing with it.

People will say, as no doubt the Minister will, “We won the election and therefore this is what the public think”, but on asylum and refugees there is an argument for saying, “Of course we don’t want open borders but there is a need for us to act in a way that is compassionate and consistent with the values that we have always had”. Sometimes that costs you, as I know, but that does not mean you should not do it. Public opinion can therefore be changed, and the subject is debated. Indeed, policy and opinion can change in this Chamber, which is the point of it. In the interests of time, I will stop there.

Amendment 114 is exceptionally important because of the need for international action. To apply it to our own situation here, we will not deal with the migrant crossing problem in the channel without co-operation from France and the rest of Europe.

I want to talk about the importance of Amendment 113, and I take issue with the noble Lord, Lord Green, on this. It is not an open invite to everybody to pile their children—I paraphrase, but if I get it wrong then no doubt the noble Lord will correct me—into the EEA because that means they can all then come to the UK. The amendment clearly lays out that it is about people who already have a family member present in the United Kingdom. It is about family reunion and trying to ensure that unaccompanied children in the EEA who have a family member in the UK get the opportunity to be reunited with them.

I will finish with this point, which I know the Minister will agree with. The problem we have is that sometimes Ministers have to speak to Governments, to the computer and to the Civil Service and say, “This bit of the Bill is wrong. It does not work.” Both Ministers have done it before on other Bills in other places where the Bills were wrong. On this issue of family reunion, the Government have got it wrong; they are not right. Nobody thinks that children who are unaccompanied in other parts of the EEA, for example, should not be able to reunite with their families in a way that is consistent with the values of this country, and it beggars belief that the Government would stand against that. It is not about an open door; it says quite specifically who should deal with it. I think if that were explained to the people of this country, and debated and argued with them, they would support it, because they are compassionate and decent, and in the end the compassionate and decent side will win. I think the Ministers are compassionate and decent, so let us have a Bill—in this aspect of it—that reflects that.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken to this group of amendments. I hope in what I am about to say that there will be at least some acknowledgment of the compassion and decency that we have shown as a country in the last few years—actually, the last few decades. It is such a hallmark of us as a nation. I also pay tribute to the noble Lord, Lord Dubs. Believe it or not, we like each other very much—we just disagree on quite a lot. But we have worked together in a civilised and friendly manner over the last few years, and long may that continue.

On the point about decency and compassion, Amendment 112 aims to expand the scope of the refugee family reunion policy. Under that policy, we have granted visas to over 39,000 people since 2015, over half of them being children, as the noble Lord, Lord Green of Deddington, pointed out. So, to answer the noble Baroness, Lady Jones of Moulsecoomb, we have looked into our hearts. We already have several routes for refugees to bring family members to join them in the UK, and it is important to carefully consider the impact of further amending our policy.

Family unity is a key priority, but noble Lords will know that we have a range of aims further to this, including ensuring that we have reasonable control over immigration and that public services such as schools and hospitals—and I think that it was the noble Lord, Lord Green of Deddington, who talked about the infrastructure of this country—are not placed under unreasonable pressure. However, I recognise that in some cases there will be exceptional and compassionate circumstances which warrant a grant of leave. To answer the noble Baroness, Lady Ludford, the guidance on exceptional circumstances will be published in due course. That is why our policy ensures that there is always discretion to grant visas outside the Immigration Rules, which may cater for the sorts of cases that do not immediately fall within our legal framework.

In terms of allowing child refugees to sponsor family members under this proposed clause, noble Lords will at least grant that I have been consistent in opposing that sort of policy, because of its negative consequences. It is highly likely that this would create further incentives for more children to be encouraged—or even, sadly, forced—to leave their family and risk extremely dangerous journeys to the UK in order to sponsor relatives. Such an approach would open children up to a huge exploitation risk, which completely contradicts the hard work and commitment of the Home Office in protecting children from modern slavery and exploitation. We refuse to play into the hands of criminal gangs, and we cannot extend this policy to allow child refugees to sponsor family members into the UK.

Beyond this, many of the conditions set out in this new clause are already included in our current family reunion policy and are taken into consideration when decisions are made inside or outside the rules. All noble Lords in Committee should have a copy of the various routes. Our prime consideration in all cases is the best interest of the child in question—and so it should be. As the number of visas we have granted under this policy reflects, we are committed to maintaining family unity for refugees. Caseworkers are encouraged to use discretion in considering whether entry may be granted in family reunion cases. By setting out conditions in primary legislation, we would lose the individuality of consideration, and the discretion of caseworkers would be void. I can assure the Committee that all relevant elements of each case are thoroughly considered on their merits under this policy, and there is no need to set it out in statute.

I turn to Amendment 113, on family reunion for unaccompanied asylum-seeking minors. I cannot support this proposed new clause. It tries to recreate the EU’s Dublin regulation in UK law with respect to unaccompanied children who have claimed asylum in an EEA state but have family members in the UK. When the UK sought to raise these matters with the EU, our proposals had very clear safeguards for children. This proposed new clause has none. It creates entitlements to come to the UK to claim asylum if the minor has specified relatives but it fails to consider the individual needs of the child. It does not consider whether the UK relative can actually take care of the child or whether the child would be better placed with a relative, potentially an even closer relative, in another safe EEA state.

The other point about this proposal is that it does not work unilaterally. I am sure the noble Lord will concur with that. It requires co-operation from EEA states. It is not possible to legislate through this Bill to take children out of other countries’ care and support mechanisms or their asylum systems. That requires agreement between states, which might not be possible and is certainly unlikely in the timescale of six months set out in the clause.

I see that the noble Lord, Lord Dubs, is about to stand up. Might I finish this point about the EU before he does? As he knows, we sought to negotiate with the EU on UASC family reunion and continue to talk to it on this important issue. However, at this point I cannot comment further.

Nationality and Borders Bill

Lord Coaker Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 3rd February 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, the Committee will be pleased to hear that I am not hangry any more. I would not like the Chief Whip to think that this speech is so short because of what he just said; it was going to be short anyway.

Amendment 67 in my name and that of my noble friend Lady Hamwee seeks to take out an apparently innocuous part of the Bill that intends to put into primary legislation that the feet of the asylum seeker need to be on dry land in the UK before they can claim asylum. At present, this requirement, “UK terra firma” as I might call it, is contained in the Immigration Rules rather than in primary legislation. The concern of organisations such as the Immigration Law Practitioners’ Association is that this strengthens the Government’s hand in any court case where Home Office actions are challenged as being contrary to the refugee convention, where the Government can now point to primary legislation as in some way overriding their international obligations.

Section 2 of the Asylum and Immigration Appeals Act 1993 provides that nothing in the Immigration Rules may lay down any practice that would be contrary to the refugee convention. Moving the UK terra firma condition from the Immigration Rules to primary legislation may be seen as an attempt to get around this requirement. The change is seen as integral to other quite abhorrent and questionably legal measures that we will come to later, giving Border Force and others the authority to board, intercept and drive away vessels containing asylum seekers crossing the channel.

Presumably this change that we are challenging is to stop asylum seekers being pushed back towards France from trying to claim asylum in the channel. Clause 13(7) may seem innocuous, but it is part of a greater evil and should be removed from the Bill. I beg to move.

[Lord Coaker (Lab)]

My Lords, I have a couple of questions for the Minister on Amendment 67. I will be interested to hear the debate on this amendment because the change in Clause 13(7) appears to be fairly innocuous, although quite significant. As the noble Lord, Lord Paddick, has said, the Immigration Law Practitioners’ Association has raised concerns about it so we will all listen carefully to what the practical impacts of this charge are.

Can the Minister explain what “territorial sea” of the United Kingdom means? I take the Chief Whip’s point—this may seem a very detailed point, but that is the point of Committee. What does “territorial sea” mean with respect to the beach? My understanding is that territorial water is low tide to 12 nautical miles out. The target then becomes the low beach mark. How is that measured? This is pedantic, but important: how is that measured around the coast?

I looked up the Explanatory Notes for Maritime and Coastal Access Act 2009 and I do not understand what they mean:

“For the most part the territorial sea of the UK does not adjoin that of any other state. Where it does do so in the English Channel, the Territorial Sea (Limits) Order 1989 … sets out the limits of the territorial sea in the Straits of Dover in accordance with an agreement between the UK and France.”


Is that still in existence? The notes continue:

“In relation to the delineation of the territorial sea between the UK and the Republic of Ireland, the situation is more complex, with no boundary having been agreed between the two states. Instead arrangements have been put in place under the Belfast Agreement for joint management of the Loughs that form the border (the Foyle, Carlingford and Irish Lights Commission’s Loughs Agency).”


I do not expect the Minister to answer now—this is not a trick question—but will she write a letter to explain what the legislation means for someone who may or may not be claiming asylum? The Explanatory Notes continue:

“Within the territorial sea, the UK has jurisdiction for the sea itself, the seabed subjacent and the air above.”


I do not know what the “air above” means. Will the Minister clarify that point?

I am confused—and the Government are confused—on another point. A row is clearly going on in government between the Ministry of Defence and the Home Office on pushback and this House is confused by the Government’s response.

Yesterday at the Home Affairs Select Committee, the Home Secretary was asked whether James Heappey, a Ministry of Defence Minister, was right to rule out pushback by the Navy. To be fair, the noble Baroness, Lady Goldie, ruled this out in this Chamber in answer to a question from me and other noble Lords. We were told by the Home Secretary, and this is really important, that the Minister

“gave a view … They are not facts. They cannot be facts, because the work—that operational work—is still under way. While I appreciate that he was responding to questions in Parliament, whether that was in Committee or in response to an urgent question, this is work in progress. It is wrong to say anything specific with regards to work operationally that is still being planned. That work has not completed yet.”

They cannot both be right, can they? If the Government have a pushback policy, they have a pushback policy and, as the noble Lord, Lord Paddick, mentioned, presumably including the seas helps with that. I do not know. What is the Government’s policy on pushback? We are debating the Nationality and Borders Bill and an aspect of it to do with territorial seas and I have no clue what the Government’s policy is.

--- Later in debate ---

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

I thank noble Lords for speaking to these amendments. In terms of territorial waters, yes, I understand it to be 12 nautical miles at low tide. In terms of pushbacks, of course I agree with my right honourable friend the Home Secretary and we are developing a range of tools to tackle the illegal and very dangerous crossings in the channel.

[Lord Coaker (Lab)]

I absolutely understand why the Minister has said what she has with respect to the Home Secretary. Nobody, including me, expects the Minister to get up and say that she disagrees with the Home Secretary—for obvious reasons. But that is not the point. The point is: what is the Government’s policy? The Ministry of Defence is saying one thing—including the Minister who speaks for defence matters from the Dispatch Box—and the Home Secretary is saying something completely different. It is not good enough.

[Baroness Williams of Trafford (Con)]

I agree with the noble Lord and I will clarify the point on this issue. He knows that I will clarify that for him.

Amendment 67, if we can get on to that, seeks to weaken the message that this Bill strives to send. People should not risk their lives using unseaworthy vessels—I do not think anyone would think that they should—to reach our shores when they have already reached safety in a country such as France. It puts their lives at risk, and those of Border Force and rescue services. Events in recent months have all too starkly demonstrated the devastating human cost of undertaking these journeys. This provision is just one of a host of measures which aim to deter illegal entry to the UK. It is right that we prioritise protection for the most vulnerable people rather than for those who could have claimed asylum elsewhere.

Parliament has already had an opportunity to scrutinise these measures when they were placed in the Immigration Rules in December 2020. It has been a long-standing practice in place for many years to only accept claims for asylum in person at the individual’s first available opportunity on arrival in the UK. These provisions simply seek to place these long-standing requirements on a stronger statuary footing.

--- Later in debate ---

Moved by

[Lord Coaker]

77: Clause 17, page 21, line 15, at end insert—
“(1A) The Secretary of State may not serve an evidence notice on a person who—(a) has made a protection claim or a human rights claim on the basis of their sexual orientation or gender identity;(b) was under 18 years of age at the time of their arrival in the United Kingdom;(c) has made a protection or human rights claim involving sexual or gender-based violence;(d) is a victim of modern slavery or trafficking; oron other categories of person on whom the Secretary of State considers it would be inappropriate to serve an evidence notice.”Member’s explanatory statement
This amendment probes the serving of an evidence notice on vulnerable groups.

[Lord Coaker (Lab)]

My Lords, my noble friend Lord Rosser tabled Amendments 77 and 89. In this group we also very much support the important amendments in the name of the noble and learned Lord, Lord Etherton; those of the noble Baroness, Lady Hamwee, to remove the deadline; the crucial amendments of my noble friend Lord Dubs on the weight given to evidence; and indeed the amendment of the noble Lord, Lord Paddick. This is another important group of amendments.

The Government are aware that there are extreme and widespread concerns over the impact of the late evidence provisions in this part of the Bill, particularly the impact on vulnerable groups of people. I am pleased that the Government agree, because in their equality impact assessment which goes with the Bill there are hundreds of quotes that could be used to support the amendments that have been put down by various noble Lords. I have picked just a couple out. For example:

“We will continue to consider ways in which to mitigate adverse impacts on vulnerable people.”


Astonishingly, it also admits that:

“Where we do not have data, we have made assumptions.”


One hopes that if they have made assumptions on legislation which we are going to presumably pass at some point, we will continue to look at how we mitigate these consequences.

Noble Lords will be particularly interested in a quote from the Government’s own evidence to themselves:

“There is a risk that our policies could indirectly disadvantage protected groups.”


That is the Government’s own evidence to themselves. They are worried about the impact on protected and vulnerable groups—they say so in their impact assessment. If noble Lords have not had a chance to read all if it, it is worth reading in great detail. If the Government come back and say that there is no need for some of these amendments, they are actually contradicting their own evidence. So I support the Government’s equality impact assessment of these amendments and hope that noble Lords will also support it, and that the Government will welcome the amendments for further clarifying their own impact assessment.

Crucially, the amendments seek to provide more clarity on how vulnerable groups will be considered and what will be accepted as, for example, a good reason for late compliance. It is well understood, but not particularly reflected in these provisions, that those who have experienced trauma may find it intensely difficult, if not impossible, to disclose their experiences on demand.

Amendment 77, in the name of my noble friend Lord Rosser, would prevent evidence notices and the strict cut-off date for evidence being served on children, people seeking asylum based on their sexual orientation or gender identity, or survivors of sexual violence, gender-based violence or modern slavery and trafficking. I should declare again my interest as a research fellow at Rights Lab, at the University of Nottingham, in respect of modern slavery and trafficking. This amendment seeks to probe what the approach will be to these and other vulnerable groups.

I was struck by my noble friend Lord Cashman’s speech, on Tuesday, about somebody fleeing persecution because of their sexual orientation. He said that when you arrive at a place of safety, your first thought is that you are safe, not whether you are complying with a notice of what you will be required to do by a certain date or else be in trouble; indeed, when you are fleeing from whatever it is you are fleeing from, you first thought is not whether you have picked up all the relevant papers. These are the sorts of things that we need to consider.

Crucially, the amendment is not limiting, as it allows the Secretary of State to recognise further vulnerable groups who should also be exempt from these provisions. There is always a problem when you generate a list that there is someone you do not include.

An LGBTQ+ asylum seeker may face obvious problems providing evidence of sexuality, given that they will have been forced to hide in their home country through fear of persecution or death. They have fled to seek safety. They may not be being interviewed through a translator, the fear has not left them, they may not have the language with which to express what they have been through, and they may be fearful for the loved ones they have left behind. I know many noble Lords will have met many victims and survivors. Part of the problem is the concern they have for people at home, back in the country they have fled. I use myself as an example, as I know other noble Lords might: I would not comply with an authority, even if I felt safe, if I thought that my sister, brother, uncle, husband, wife or whoever was going to be put in danger—I just would not. I sometimes wonder whether what the Government are suggesting complies with the real world in which we all live.

Women for Refugee Women, which supports women fleeing gender-based violence, has said that

“because there are so many legitimate reasons for why a woman who has survived gender-based violence may submit evidence late, we do not think there is a way in which these evidence notices can be implemented fairly in respect to these highly vulnerable individuals.”

The Government themselves recognise that these specific difficulties exist, yet now, if a vulnerable person cannot produce that relevant evidence by a fixed date, it will be considered to have less weight than it is actually worth. That is included in the legislation, as laid out in the clauses we are considering at the moment.

Particularly concerning is that victims of modern slavery and trafficking are included in these provisions. The Government’s own statutory modern slavery guidance says that victims may be

“reluctant or unable to self-identify … Victims may experience post-traumatic stress disorder and anyone interviewing a potential victim should be aware of the impact of trauma on the interviewee, for example difficulty recalling facts.”

Why then, on the one hand, does guidance recognise the impact of trauma in disclosing experiences, yet, on the other, the Bill includes provisions that penalise people for not being able to hand over a neat life story on a deadline? That is contradictory.

Can the Minister clarify—because it is not clear to me—whether these provisions will be applied to children? The number of children waiting for more than a year for their initial decision increased from 563 in 2010 to 6,887 in 2020. That is not because of a surge in applications; it is because of a breakdown in the asylum system. We need to be extremely careful that the Government’s answer to that huge increase is not to penalise children for a failure of the system.

The Bill provides for exemptions where a person has good reason for not complying on time, but we need more information, as we have heard in respect of other parts of the Bill, about what is meant in practice by “good reasons”. Is that a subjective judgment? Is it just left hanging? What does “good reasons” mean? Our Amendment 89 probes examples of what would be considered a good reason for providing evidence late for a PRN. The amendment includes examples of where there is evidence of post-traumatic stress and where it would potentially endanger a person to gather the needed evidence before the cut-off date. It would also require the Secretary of State to publish a non-exhaustive list of what would be accepted as a good reason. The Minister will understand that we are trying to understand what the Government mean by “good reasons”.

It is particularly interesting that the only answer to these queries that we had in the Commons was:

“Guidance … will be published and made available when these measures come into force.”—[Official Report, Commons, Nationality and Borders Bill Committee, Commons, 26/10/21; col. 357.]


We know how difficult it is for us to consider whether that is the appropriate way forward and or whether it satisfies this Chamber given that it is, “We’ll pass it, but don’t worry, the guidance is on its way, and we’ll deal with it”. I say with all respect to the Minister that that is not good enough. Parliament is being asked to pass this Bill now, and we need greater clarity and understanding about how it will function in practice.

Clause 25, on which there is the stand part debate, states that “minimal weight” should be given to late evidence. It is extremely problematic to give important evidence minimal weight based on a deadline rather than judging it on its merits. That is prioritising process over truth and factual evidence, and it will lead to bad decisions. It completely flies in the face of the established practices and procedures of this Parliament and our judicial system. I say again that the Government are prioritising process over truth and factual evidence and it will lead to bad decisions.

The system is currently not operating as it should. The proportion of asylum appeals that were successful in 2020-21 was 47%, so evidence is already not being given the weight it should be given because almost half the decisions are overturned on appeal, and it is leading to decisions that are incorrect. Why in this situation would we build in a mechanism to take evidence less seriously? It flies in the face of the reality that we are confronted with. We must ask how this measure complies with the legal requirement on the Government and all of us to act in the best interests of the child. Can it ever be the case that giving evidence of their need for asylum “minimal weight” is in their best interest?

We therefore strongly support my noble friend Lord Dubs’s Amendments 83 and 88 to remove, as recommended by the JCHR, the provision in Clause 25 that the deciding authority must have regard to the principle that minimal weight should be given to the evidence. It is quite an astonishing principle to establish in law that evidence should be given minimal weight rather than whether it is good evidence or bad evidence or whether it is truthful evidence or untruthful evidence. The noble Lord has been in court. I am sure that if he was giving evidence and somebody said, “Well, that’s minimal”, he would say, “Well, actually, it’s true.” I am not a lawyer, but I would hope that anybody representing me would put good evidence forward and the court would say whether it was good or bad, and you would hope to establish the facts.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

It is because there is absolutely nothing wrong with Parliament saying to a tribunal, “We want you to have regard to this principle, but of course the final decision is yours”. We do that in other areas of the law as well. As the noble Baroness, Lady Ludford, kindly said, I gave evidence yesterday to her committee in what I hope was an interesting session. One thing we talked about was Section 12 of the Human Rights Act. The layout there was not a million miles away from this. It too gives a very clear direction to the court, but ultimately it is the court’s decision. I find it slightly surprising that, on the one hand, the noble Baroness is saying that this is tawdry and dreadful but, on the other, is saying, “Actually, you don’t need it all because the same result is going to eventuate”. Both points cannot be right at the same time.

As we all know, the asylum and the legal systems in this regard are overwhelmed. We see repeated unmeritorious claims at the very last minute designed to delay removal. This clause is a proper part of an overall system to make sure that we give protection to those who need it—I always put that first; that is the most important thing—and at the same time to identify unmeritorious claims.

Finally, Amendment 137 in the name of the noble Lord, Lord Dubs, and spoken to by the noble Baroness, Lady Ludford, seeks to implement a recommendation made by the JCHR in its ninth report. Of course, we welcome the JCHR’s positive comments on Clause 45. Migrants who are subject to removal must be given sufficient opportunity to access justice. The clause improves and enhances the status quo. It gives a statutory guarantee that migrants will receive a minimum notice period of five working days. As a result, some migrants will get more time compared to the current policy. It introduces a separate statutory requirement for a notice of departure details to be provided to the migrant before removal.

On a practical level, Clause 45 will be supplemented by policy guidance that accords further respect to the common-law right to access to justice. I say respectfully that it is not clear to me what deficiency in Clause 45 Amendment 137 tries to address. I would genuinely welcome engagement from the noble Baroness and the noble Lord, Lord Dubs, to identify what offending aspects of Clause 45 there may be and how Amendment 137 would solve them.

Therefore, having taken probably too much of the Committee’s time already, I invite the various noble Lords to consider not pressing their amendments.

[Lord Coaker (Lab)]

I thank all noble Lords who have spoken in this very important debate. I also thank the Minister. Yes, it was a long reply, but it was an important one and it did not take up too much time. Sometimes long replies are needed, and the Minister was right to take the time that he took to respond. There are a large number of points on which I could reply to the Minister, but it is clear that we will have to come back to some of them on Report.

If the Minister does not mind me chiding him slightly, I will say that that was a bit of a “no worries, no problem” defence: “Everything is fine. It will all be sorted in guidance, although we will not see it until some future time. Do not worry about the children problem that the noble Baroness, Lady Lister, raised, because we have all taken into account the sensitivity of children and how old they are. Do not worry about LGBTQI because they will all be very reasonable. Do not worry about the good reasons either—it will all be sorted. Good reasons mean good reasons. Nobody will do anything about it if the reasons are good.”

One example where the Minister was in trouble at the end essentially concerned Clause 25(2). When is a principle not a principle? Is it a principle when it is written down? I love the phrase “have regard to”; it is always put in. The Minister said that we do not have to take X or Y into account. In a sense, he agreed with the JCHR that a better word would be “may” instead of “must”. This is quite a significant change—something may be taken into account, or it may not be. At the moment, it says “must”. This is the problem with which he was trying to wrestle—first, whether there is a principle at all, and secondly, whether “may” or “must” should be used.

The Government are seeking to deal with the problem that the asylum system is in chaos. Half the decisions are overturned on appeal. Panic has broken out. The Government say, “We cannot have this. The public are going mad. Everybody is dissatisfied. We will get more and more of this. Everyone is making late appeals. They are not abiding by the rules. We have to do something.” A whole series of new measures is being taken to overcome a bureaucratic problem. In the end, it needs good—probably trained—decision-making, speedily done, to get a system that works. The Government will not address the very real problem in the Bill, particularly in respect of late priority notices, except on a piece of paper. In a year or two or three, there will be a Nationality and Borders Bill mark 2. If they are not careful, whoever is in government—I hope it will be a different Government—will be panicking in the face of it not working. They will bring in other measures.

Much of what has quite rightly been raised by noble Lords across the Chamber will have to be revisited on Report. I thank the Minister again for his courtesy and for the time and trouble he took to try to respond. Finally, the sooner we have a look at the guidance, the better. It is very frustrating when the Government say that they will publish the guidance and it is published after the Bill is passed. We deserve to see the guidance as soon as possible. I would be very grateful if the Minister could pass this on. I seek leave to withdraw the amendment.

Amendment 77 withdrawn.