Safety of Rwanda (Asylum and Immigration) Bill

Lord Dubs Excerpts

Report stage
Wednesday 6th March 2024 Lords Chamber

[Lord Dubs (Lab)]

My Lords, I would like to endorse the arguments used by my noble friend Lady Lister and to fully support this amendment. We all know that child assessments are difficult, and they can be traumatic for the children concerned. I know of an example where a girl, who was quite sensible and coherent, was being interviewed, and then, when she left the interview, she was traumatised, deeply upset and it was a very distressing experience. It will be even more distressing if so much more hangs on the outcome.

Officials can get it wrong; it is difficult to assess the age of children, and this modest amendment simply seeks to provide a safeguard against getting it wrong. Yes, the Minister can say that if we get it wrong, the child can be brought back from Rwanda—what a terrible thing to subject a child to. Asylum-seeking children are among the most vulnerable of all asylum seekers, and I hope the House will support the amendment.

[The Lord Bishop of Chelmsford]

My Lords, I rise also to support Amendment 34. I will keep my comments brief because I fully support the statements from the noble Baroness, Lady Lister, and the noble Lord, Lord Dubs. But please do not mistake my brevity with the level of importance that should be attached to this issue. Safeguarding is not some burdensome requirement but a moral and legal imperative. It is for this reason that I repeat the request that I made in Committee for a child’s rights impact assessment to be published.

It is welcome that the Government have excluded unaccompanied children from the Rwandan partnership, but to safeguard potential children effectively, this commitment must be more than a mere intention; it must be operationally put into practice. This amendment would help mitigate the risk of a person being sent erroneously—when they are, in fact, a child—by sensibly awaiting the result of any age assessment challenge before their removal. When it comes to a child, we cannot allow harm to be addressed retrospectively, as surely it is the role of any Government to prevent harm, regardless of the immigration objective. Trauma, as we have heard, simply cannot be remedied.

The Minister has shared that the Home Office will treat an individual claiming to be a child as an adult, without conducting further inquiries, only if two officers have separately determined that the individual’s appearance and demeanour strongly suggest that they are significantly over the age of 18. But practice to date shows that this is no safeguard at all, because it has not prevented hundreds of children from being incorrectly assessed as adults.

I also want to add that the hotels reinspection report by the Independent Chief Inspector of Borders and Immigration, finally published last week, states,

“there has been no assessment of the collective needs of the children”.

That is traumatised unaccompanied children whom the Home Office has placed in hotels. This disturbing finding does not provide any reassurance that the Home Office is equipped to ensure children are protected through the age assessment process.

Therefore, given that errors have been made in the age verification process and children have been subjected to unsafe adult environments as a result, can I ask the Minister to agree today to review the Home Office’s age assessment guidance, in consultation with stakeholders, in light of the new risks posed by the Rwandan removals? Will he also be willing to meet with the signatories of the amendments in this group to discuss this matter?

Finally, the golden rule, “Do to others as you would have them do to you”, could easily be rephrased for this context into the question, “Would you consent to this course of action for your own child or grandchild?” I do not believe that there is anyone among us who would. For this reason, I pray that the Government consider the issues raised today with the consideration that every child deserves.

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The reality is that, whatever your view on all these matters—whether it is something like the animal welfare legislation or whether it is the very important and fundamental provisions of the Bill, whether you agree with the substance or not—we must have openness and transparency about the reality of how it applies in Northern Ireland and the reasons why it cannot. That is what I am eager to explore, and the Government need to tell this House and be frank with the people of Northern Ireland about the reality of how we are now governed. I look forward to the Minister’s reply.

[Lord Dubs (Lab)]

My Lords, I will speak to Amendment 44A, which is on a different point from the one the noble Lord made about Northern Ireland. The point is simple. There is a long-standing convention that the United Kingdom Government do not legislate for the Channel Islands or the Isle of Man without seeking their consent before doing so. I had a letter from the Government of Jersey asking me whether I could raise this on Report. I understand that, on this occasion, no consultation took place with the Government of Jersey before the Bill’s introduction, and I do not have any evidence of whether the Government of Guernsey and the Isle of Man think the same as the Government of Jersey. All I know is that the Government of Jersey do not consent to this permissive extent clause.

In the event, neither the Rwanda treaty nor the Rwanda memorandum of understanding apply to Jersey, and any extension would be complex given that Jersey has its own Human Rights (Jersey) Law 2000. I am not sure whether this is an oversight by the Government in their haste to get the Bill through or whether something else is going on that I do not understand, but I would very much like the Government to explain why they have not sought the consent of Jersey, whether they have sought the consent of Guernsey and the Isle of Man, and what they propose to do to rectify this position.

[Baroness Lister of Burtersett (Lab)]

My Lords, I will say a couple of things about Northern Ireland, following the noble Lord, Lord Dodds of Duncairn, although I suspect from a very different perspective. First, as I pointed out in Committee, the Joint Committee on Human Rights asked for a full explanation before Report. We are almost at the end of Report and, as far as I am aware, despite all the talk of imminence, we still do not have the Government’s response to the JCHR’s report. I very much support what the noble Lord, Lord Alton, said about that earlier—it really is not good enough.

I turn to the disapplication of human rights and the implications for the Good Friday agreement and the Windsor Framework. I know I will not change the Government’s mind on this, but I say this partly to amplify what was said earlier and put this on the record. The cases that the noble Lord referred to have been brought to my attention. In their revised fact sheet—and in almost identical words in a letter to me—the Government said that

“the bill does not engage the Belfast (Good Friday) Agreement, including the rights chapter - those rights seek to address longstanding and specific issues relating to Northern Ireland’s past and do not extend to matters engaged by the bill”.

But the cases to which the noble Lord referred made something absolutely clear. The 28 February decision in the 2024 case of Dillon and others—NIKB 11 —referenced the overarching commitment to civil rights in the relevant chapter of the Belfast Good/Friday agreement. It said in paragraph 554:

“A narrow interpretation of ‘civil rights’ undermines the forward-facing dimension of the non-diminution commitment in article 2(1)”.


It says it is “future-facing”; it is made clear that it is not looking just to the past.

Similarly, in Angesom, which was also referred to by the noble Lord, the decision said:

“The court rejects the submission by the respondent that the rights protected by the relevant part of the GFA are frozen in time and limited to the political context of 1998. The GFA was drafted with the protection of EU fundamental human rights in mind and was therefore intended to protect the human rights of ‘everyone in the community’ even ‘outside the background of the communal conflict’”.


So I do not think that what the Government have come up with so far is good enough in explaining why they believe that the disapplication of the Human Rights Act does not apply and will not affect the Good Friday agreement and the Windsor Framework.

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[Lord Stewart of Dirleton (Con)]

I regret to say that I am not privy to that information directly. I hear the point that the noble Lord raises, and, if he will permit, I will write to him to set out in appropriate detail an answer to the point that he makes.

[Lord Dubs (Lab)]

I am afraid that we are still left with a very unclear position as regards Jersey, and possibly also the other Crown dependencies. Where does this leave us? Jersey has made it clear that it does not consent to the permissive extent clause. Where does that leave us? It is a bit of a mess. Should not the Government bring forward something to tidy this up at Third Reading?

[Lord Stewart of Dirleton (Con)]

I shall make sure that the noble Lord’s point is given consideration before Third Reading.

For the reasons that I have sought to set out, I would encourage the noble Lord, Lord Dodds, to withdraw his amendment at this stage.

Illegal Migration Bill

Lord Dubs Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

Moved by

[Lord Dubs]

14: Clause 4, page 6, line 11, after “2” insert “and does not fall within the exceptions in section 3”
Member’s explanatory statement
This amendment would make asylum and human rights claims admissible from unaccompanied children, who are exempted from the duty to remove by Clause 3. This would continue current policy under which unaccompanied children’s asylum claims are not subject to the inadmissibility regime.

[Lord Dubs (Lab)]

My Lords, I am grateful to the noble Lord, Lord Scriven, the noble and learned Baroness, Lady Butler-Sloss, and the right reverend Prelate the Bishop of Durham for supporting this amendment.

The issues are pretty clear and I shall be ever so brief. We have been over these arguments in principle both in Committee and, implicitly, in some of the earlier amendments on Report. The clear point is this: the impact of the Bill will be that children claiming asylum in the UK will automatically be turned away, based on the method by which they have travelled and arrived in the UK. That, in effect, will mean that children will be refused an application for asylum, regardless of their need for protection as child refugees.

This is in the light of the most recent figures, which show that, of all the unaccompanied children who arrived and whose cases were determined, 86% were given refugee status. Therefore, we are saying no to the equivalent children who will be coming in the future. We are dealing with some of the most vulnerable of all refugees. We know that. Even the Minister said in Committee:

“We recognise the particular vulnerabilities in relation to unaccompanied children”.—[Official Report, 5/6/23; col. 1168.]


There has been virtually nothing in the impact assessment about children. At Question Time the other day, the noble Lord, Lord Hannay, referred to the United Nations Committee on the Rights of the Child. Earlier this month, the committee expressed concerns about the potential impact of the Illegal Migration Bill on children and went on to specify in detail how it would work.

The Government seem to think that, by having this, somehow children will stop coming over. I do not believe there is any evidence to support that. I have talked to some of the children in the Calais area. Those who get to Calais are absolutely determined to continue their journey.

The Government seem to think that most of the world’s refugees should claim asylum in the first safe country they reach. Most of the world’s refugees, in any case, are in countries adjacent to the one they fled. We know that the majority of children who reach France claim asylum there; it is a minority who claim asylum in this country.

What we are doing with this Bill is shutting the door on some of the most vulnerable human beings on earth: refugee children. These are children who have escaped the most appalling situations. The Government was wobbly even in the Commons during Report on this issue, and the right thing would be for them to accept this amendment. There is absolutely no argument why they should turn their backs on children, the most vulnerable refugees that there are. I beg to move.

[Lord German (LD)]

My Lords, I will speak to the second amendment in this group, which is in my name and the name of the noble Lord, Lord Kerr. I declare my interests as set out in the register. I obviously support the amendment from the noble Lord, Lord Dubs, as an absolutely important amendment.

The amendment I am proposing has two purposes. The first is to provide a route out of the limbo which thousands of people could fall into if they were not removed from this country and had to remain here without any opportunity to make their case. The second purpose is to provide a backstop for the Government so that they can bring matters to a conclusion where there is no conclusion in this Bill.

This amendment provides a backstop for the Government if, for whatever reason, an individual cannot be removed within six months. It means that the Government do not have to indefinitely support them. The Government can consider their asylum claim in the UK which, if successful, means they can get on with their life in the United Kingdom. If it is unsuccessful, they can be removed to their country of origin. Without this amendment, the Government are unable, because of the powers in the Bill, to consider their asylum application in the United Kingdom. So, if a safe third country cannot be identified for a person’s removal, the Home Secretary has no way to discharge the responsibility to them.

The economic impact assessment of the Bill assumes that people will be detained for 40 days before removal. In fact, I will quote the Minister at the beginning of today’s debate. He said:

“We need a scheme that will enable removals in days and weeks, not … in months”.


If that is the case, and the Government are true to their meaning, this backstop will never apply. But it is a backstop in case it does not work. We have not seen the evidence that it might work. The backstop will ensure that taxpayers’ money is not tied up in supporting thousands of people indefinitely. It is not a commitment to spend additional money but a financially prudent course of action that will help planning for both national Government and local authorities in this country.

This amendment also recognises the human dignity of each individual. Keeping them in a state of limbo, unable to support themselves and their families, and dependent on the state, is not healthy for any society. It has the great risk of fuelling exploitation in the United Kingdom.

The migration and economic development partnership with Rwanda is currently the only removal agreement that the UK has in place that includes third country nationals. The legal and practical challenges faced by that scheme are well documented and, even if it becomes operational, it will not be possible to remove to Rwanda all of the thousands of people whose claims are deemed inadmissible. That is why this backstop clause for the Government is so important.

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For these reasons, I invite the noble Lord, Lord Dubs, to withdraw his amendment.

[Lord Dubs (Lab)]

My Lords, obviously I find the Minister’s reply disappointing. He dangled an incentive that there might be some regulations in the future that might do something to ameliorate the provisions of the Bill—but that is not good enough. We are dealing with very vulnerable people, and if the Minister wants to threaten them by saying that we will treat them badly, because that will stop them wanting them to come, there is no point dangling some regulation for the future that might change that. That does not seem logical to me.

I wish the Minister had been with me when I was talking to a young man who came to this country when he was 15 or 16, but who would not have been able to come here under the provisions of the Bill. He was so excited to be here. He was in education and wanted to be an athletics instructor, and he was jolly good at it.

Finally, I was talking to a young Syrian outside the Palace a few years ago—again, he was 14 or 15. This may not be a very telling argument, but I will describe it anyway. He pointed at this Palace and asked me, “You know what I want to do in life?”. I said no and asked him to tell him. He said, “I want to become an MP”.

These are the sorts of people who would benefit from the amendment. It is only humane that we should pass the amendment. I wish to test the opinion of the House.

Nationality and Borders Bill

Lord Dubs Excerpts

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

[Lord Alton of Liverpool (CB)]

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

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

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


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

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

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

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

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

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

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

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

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

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

[Lord Dubs (Lab)]

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

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

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

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

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

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support this group of amendments; I have signed only one, simply because I am not terribly well organised. I agree with the comments about Theresa May, whom I admired for many things, including the fact that she gave me a colleague in this House; it was six long, lonely years without my noble friend Lady Bennett.

An Urgent Question was left off the Order Paper today. It was put in the other place by the honourable Member for Brighton Pavilion, Caroline Lucas, who is the Green Party MP. Either me or my noble friend Lady Bennett would have liked to have contributed to that debate. I should like an explanation from the Government as to why it was left off the Order Paper. I am a great believer in cock-up rather than conspiracy, but I would like an explanation at some point and have chosen to put it into Hansard for that reason.

I return to this “shaming” part of the Bill, as the noble Baroness, Lady Hamwee, described it. Every time I think we have got to the worst part, I turn a page and it is even worse. The combined resources of this House will make this a difficult section for the Government to push through.

Noble Lords have spoken from a depth of understanding and experience that I probably do not have. Evidence is evidence wherever it is uncovered, and delays in producing evidence might be considered when weighing up the quality and value of such evidence. Essentially, the Government are making this an absolute requirement, which is unfair and unjust.

We are talking about the incredibly distressing circumstances of many of these people. We have already had examples. They are victims of slavery. They have possibly been groomed, tricked or kidnapped and brought to the UK. Instead of helping them or demonstrating even an ounce of compassion, this Government are treating them all as if they have done something wrong. I urge the Government to rethink this. I would hate to see another 14 votes go against the Government in one evening but, on the other hand, that was great fun and we could probably do it again.

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[Baroness Hamwee (LD)]

My Lords, my name is on Amendment 160A, which is from these Benches. I fear that we are rather in lipstick on pigs territory—a phrase used a good deal earlier in our deliberations on the Bill. Clause 62 refers a “threat to public order”, which is then explained as various terrorism offences. It says that the list is not exhaustive, and I recognise what the Minister, the noble Lord, Lord Wolfson, said about how non-exhaustive lists are dealt with in the courts and that the longer lists are, the more rigorously they are dealt with. Our amendment refers instead to a threat to national security.

My noble friend Lord Paddick also has his name on the Clause 62 stand part notice and mine is on Amendment 169. I do not want to take the time of the Committee by repeating what has been said, very clearly, about activity “attributable” to being a victim of slavery or trafficking.

In the previous group of amendments, the Minister referred to an ability to recollect. I think, from other things he has said, in a sympathetic manner, he would agree that very often there is also, among victims, an inability to express—it is not just the inability to recollect. It might be worth saying—I am not sure it has been said before—that there is even more difficulty than in disclosing that one has been a victim of forced labour in disclosing that one has been a victim of sexual exploitation.

I agree with others about words such as “worthy” and “unworthy”. I noted “deserving” and “undeserving” —here we are again—like “deserving” and “undeserving” refugees and asylum seekers; that distinction is replicated here.

[Lord Dubs (Lab)]

My Lords, again, as a member of the Joint Committee on Human Rights, I shall speak very briefly. I should say how much I appreciate the contributions made by my noble friend Lord Coaker, by the noble Baroness, Lady Ludford, who is on the Joint Committee with me, and by the noble and learned Baroness, Lady Butler-Sloss, in her very powerful remarks.

Many years ago—if I may tell a little anecdote—I heard of a certain conversation that took place in the Home Office when an official was told by her boss to justify a certain position. The official said, “But that is indefensible”. Her boss said, “Yes, of course—defending the defensible is easy. You’re paid to defend the indefensible”. I say that as a word of comfort to the Minister, who is defending the indefensible. He knows it, we know it and the officials know it—and I suppose he has to do it, unless he does what the noble Lord, Lord Agnew, did and decides to distance himself from it.

I will say this very briefly. I find it hard to remember, and keep needing to remind myself, that we are talking about Part 5 of a Bill about modern slavery. Some of these issues are so remote from the rest of the Bill, as has already been said. The amendments to which I have put my name are concerned about a number of things. One is public safety and security. The amendments seek to get the right balance between public safety and security, which of course is important, and the rights of individuals who seek safety in this country. I contend that the Government, particularly in Clause 62, have got the balance quite wrong.

As the right reverend Prelate has already said, some of the people who are victims of traffickers or slavery are under threat; they are fearful, and the fact is that some of them at least will have been compelled to take up the position that they have taken up. We should respect that. These are frightened and anxious people, who are not secure and who do not know this country at all well. They may have been in this country for some time, or they may not have been, but they do not feel all that secure. We have to be sensitive to their situation, and I contend that what the Government are doing in this section, particularly in Clause 62, is to show insensitivity to some very vulnerable people—which is why I hope they will get rid of this provision, which does not make any sense at all.

[Lord Stewart of Dirleton (Con)]

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

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

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

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

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

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

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

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Dubs Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Thursday 10th December 2020 Lords Chamber

[Baroness Massey of Darwen (Lab) [V]]

My Lords, the noble Lord, Lord Paddick, has spoken with great clarity and authority on the amendments in this group. I will speak to the human rights perspective of Amendment 63 as set out in the Joint Committee on Human Rights’ report on the legislative scrutiny of the Bill. Chapter 6 is concerned with public authorities granted power to authorise crime, as stated by the noble Lord, Lord Paddick.

Paragraph 75 of the report states:

“We accept that the authorisation of criminal conduct by the security and intelligence services and the police may on occasion be necessary … However, the Bill proposes granting the power to make CCAs … to a substantially wider range of public authorities”.


That concerns us. It goes on:

“This provision of the Bill, coupled with the ability to authorise criminal conduct in the interests of preventing disorder and preserving economic well-being … extends the power to authorise criminal conduct well beyond the core area of national security and serious crime.”


There are two key questions here from a human rights perspective. As the report states,

“the first key question is whether the exceptional power to authorise crimes to be committed without redress is truly necessary for each and every one of these public authorities. The second key question is whether the benefit of granting that power would be proportionate to the human rights interferences that are likely to result.”

The Government have provided little justification for the authorisation of criminal conduct by such bodies as the Gambling Commission, the Food Standards Agency and others. The Home Office published brief guidance and a series of operational case studies, which provide examples of authorisation by CHIS in the cases of the Medicines and Healthcare products Regulatory Agency, Her Majesty’s Revenue & Customs and other hypothetical examples of where CAAs might be used by the Environment Agency and the Food Standards Agency.

The question must be asked as to why the police or other bodies focused on the prevention of crime should not take full responsibility for authorising criminal conduct that may fall within the purview of these organisations. We are all aware that the police, in carrying out their responsibilities, have vast networks of agencies whom they consult in the course of their duties. They know whom to consult for specific issue as and when such consultation is needed. It is inappropriate and irrelevant to name other specific agencies, whose role is not protecting national security and fighting serious crime.

One of the witnesses to the inquiry carried out by the Joint Committee on Human Rights said:

“If the government believes it is necessary for each of these bodies to have the power to grant authorisations, it should be explicit about whether those bodies already possess non-binding ‘powers’ to authorise the commission of crimes and provide more detail as to how, and how often, those powers are used. In the absence of such an account, there is no reason to accept that all of those bodies require the powers the Bill would give them.”


No such detail is supplied by the Government. It is therefore impossible to assess how agencies whose primary function is not serious crime or national security can, or indeed would want to, be involved formally in granting CCAs. I look forward to the Minister’s explanation.

[Lord Dubs (Lab) [V]]

My Lords, I support Amendment 63. I very much agree with the comments made by the noble Lord, Lord Paddick, and my noble friend Lady Massey, so I shall be brief.

Like my noble friend, I speak as a member of the Joint Committee on Human Rights. It seems to me that authorisation that goes beyond the police, the National Crime Agency, the Serious Fraud Office and the intelligence services is a step too far. There has to be clear indication by the Government as to why such authorisations are necessary; so far, that indication has not been forthcoming. The list of agencies covered by this provision is so wide—not just Customs and Excise, the Environment Agency, the Food Standards Agency and many other bodies. There is no justification for extending the provisions of the Bill to that extent.

I am very concerned about one other matter. As the Joint Committee on Human Rights noted, under Section 35 of RIPA, the Secretary of State will have the power to make an order adding other public authorities to the list of those permitted to authorise covert criminal conduct. I accept that this power has been used sparingly in the past, but—[Inaudible.]—if additional authorities that have little or no relationship to those permitted to make CCAs—[Inaudible.]—regulatory oversight.

In a previous amendment, the noble Lord, Lord Hodgson, indicated that using subordinate legislation to extend powers was going rather too far, and it applies in this instance as well. Surely, it is bad enough having a list of these bodies that—[Inaudible]—but adding to them in the future by a parliamentary process that allows for very limited scrutiny. We all know that subordinate legislation can go through, we cannot amend it and it is—[Inaudible]—because of our relationship with the Commons; therefore, this is potentially an abuse of power. For all those reasons, I support Amendment 63.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Dubs Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 24th November 2020 Lords Chamber

[Baroness Massey of Darwen (Lab) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord Paddick, with his eloquence and experience. I shall speak to Amendment 8.

I am a member of the Joint Committee on Human Rights. This committee scrutinised the Bill, received expert opinion on it and made the report referred to earlier, most recently by my noble and learned friend Lord Falconer of Thoroton. This report raises many issues of human rights that will need to be teased out and possibly resolved as we go through this Bill.

Amendment 8 is there so that victims of criminal conduct carried out under criminal conduct authorisation can access compensation. This is from paragraphs 104 to 110 in chapter 8 of the report. The report notes that the Bill as introduced is potentially incompatible with human rights legislation. Article 1 of the European Convention on Human Rights requires the UK to secure the rights of all those within its jurisdiction, including victims of crime. Where crime also amounts to a human rights violation, the victim has a right to an “effective remedy” under Article 13, mentioned earlier. A victim also has a right, under Article 6, to have any claim relating to his or her civil rights and obligations brought before a court or tribunal.

Since the Bill would render all authorised criminal conduct “lawful for all purposes”, it would prevent a victim of authorised crime vindicating their rights by bringing a civil claim for compensation. It would seemingly also prevent a claim for compensation under the criminal injuries compensation scheme.

My amendment mirrors the regime in Australia, which, as the report states,

“provides indemnification for any participant who incurs civil liability in the course of an undercover operation.”

In other words, a civil claim can be brought against the perpetrator by the victim, and compensation secured, but the state will then step in to indemnify the perpetrator against his or her losses. The effect of this provision would be to ensure that the person authorised to carry out criminal conduct

“would not suffer the consequences of civil liability, but it would also ensure that the victim of the conduct would obtain civil redress while secrecy is maintained.”

This Bill has been described as promoting the concept of “one size fits all”, framed more eloquently by my noble friend Lady Chakrabarti. It is simply not acceptable or possible to do that. In relation to my Amendment 8, I have mentioned specific issues on human rights legislation, which is the core of the report I have quoted today. I look forward to the Minister’s response.

[Lord Dubs (Lab) [V]]

My Lords, I am also a member of the Joint Committee on Human Rights, along with my noble friend Lady Massey, and I am speaking in support of Amendment 8. My noble friend has put the case so well that I am just going to add one or two very minor comments. I am going to do so by quoting from the recommendations in the report that the Joint Committee put forward—a report that has set the tone for much of the debate and many of the amendments that we are discussing today. To quote from the recommendations:

“By rendering criminal conduct lawful for all purposes, the Bill goes further than the existing MI5 policy by removing prosecutorial discretion. The reason for this change in policy has not been made clear. It has significant ramifications for the rights of victims. The Government has missed an opportunity to include within the Bill provision for victims of authorised criminal conduct, both legally and practically. This is another reason why the Bill requires additional safeguards to ensure there can be no authorisation of serious criminality.”


I will go on very briefly to the next recommendation in the Joint Committee’s report, which is:

“The Government must explain why the existing policy on criminal responsibility, which retained prosecutorial discretion, has been altered in the Bill to a complete immunity. Victims’ rights must be protected by amending the Bill to ensure that serious criminal offences cannot be authorised. In respect of civil liability, the Government must confirm that authorising bodies will accept legal responsibility for human rights breaches by CHIS or alter the Bill to provide that CHIS will be indemnified rather than made immune from liability.”


This is a very clear proposal, and this is a very clear amendment that would safeguard the rights of individuals who will otherwise have no rights left if the Bill goes through unamended.

--- Later in debate ---

Moved by

[Lord Dubs]

11: Clause 1, page 2, line 8, at end insert—
“(1A) Authorisations granted under this section require judicial approval in accordance with section 29C.”Member’s explanatory statement
This amendment imposes a requirement for prior judicial approval of CCAs (with provision for urgent cases), and relates to the amendment to Clause 1, page 3, line 16 in the name of Lord Dubs.

[Lord Dubs (Lab) [V]]

My Lords, I remind the Committee again of my membership of the Joint Committee on Human Rights and the fact that the amendments in this group stem from the committee’s report, published some time ago, looking into the overall workings of the Bill.

There is widespread agreement that there should be oversight of criminal conduct authorisations. However, there is a dispute over whether that oversight should take place after or before the event. The point of the amendment is that there should be a requirement for prior judicial approval of such authorisations, with a possible provision for urgent cases in exceptional circumstances. The Bill does not provide for any independent scrutiny of criminal conduct authorisations before they are made and acted upon. There is the possibility of a review of such authorisations through the Investigatory Powers Commissioner but that would be after the event, by which time it is too late to influence whether an authorisation should have been granted. Nor does the Bill provide for the IPC to be informed of authorisations at the time they are made so that proper scrutiny can take place. That is surely the nub of the matter. Under the Bill, there would be no chance to look at authorisations until some time after the event.

The Joint Committee on Human Rights report stated that the lack of prior independent scrutiny for CCAs under the Bill stands in marked contrast to the procedures in place for other investigative functions such as police search warrants and phone tapping. That was mentioned at Second Reading. The noble Lord, Lord Macdonald, a former Director of Public Prosecutions, has stated:

“Under this bill it will be easier for a police officer to commit a serious crime than to tap a phone or search a shed.”


That is a pretty powerful statement. The powers of oversight are not proportionate to what is at stake, which is much more crucial than deciding whether the police can tap a phone or search a shed, important as those things are.

I should like to give a number of examples. If we had had oversight before the event, certain procedures would not have been followed. The most obvious was in Northern Ireland in relation to the death of Patrick Finucane and looked at in a report by Sir Desmond de Silva QC. He made a number of important points about the need for proper scrutiny of the powers being exercised, which would be exercised more freely, I contend, under the Bill. He said in his report:

“It is essential that the involvement of agents in serious criminal offences can always be reviewed and investigated and that allegations of collusion with terrorist groups are rigorously pursued.”


He did not quite say that that should happen before the event, but I contend that if it had been possible to do so, the tragic death of Patrick Finucane might not have happened and things would have been stopped in their tracks. Sir Desmond made some powerful conclusions that are entirely consistent with the requirements of human rights law. I will not quote all his comments, but the key question asked by the JCHR report is:

“Does the Bill provide the rigorous framework of oversight and accountability necessary to safeguard against abuse of the exceptional power to authorise criminal conduct?”


The committee also received evidence from the human rights organisation, Justice, which described the Bill as being,

“extremely limited in its oversight mechanisms”

and summarised its safeguards as “woefully inadequate”.

We all know about the tragic racist murder of Stephen Lawrence. The Lawrence family was apparently kept under surveillance afterwards. I contend that if there had been a proper system of oversight before that type of surveillance was exercised, it would not have been allowed and would have been stopped in its tracks, yet it went unheeded. I fear that anything similar would not be stopped by the safeguards in the Bill because they are woefully inadequate, as Justice said.

The third group of surveillance victims would be trade unions and other active organisations. We know that trade unions and environmental groups have been kept under surveillance. Those things would not have happened if such an amendment had been in place. It seems perfectly reasonable to require the tightest oversight of such extreme powers in a democracy—they are not minor powers—before the event. If something is being authorised that should not be, we would have at least one layer of safeguard to stop it going any further.

Amendment 59 is a let-out, providing that urgent CCAs can be granted without prior approval but must be confirmed by a judicial commissioner within 48 hours of being granted or they will cease to be valid. These powers would be applied only when there is an urgent case.

It is clear that whereas we all agree on oversight, what really matters is oversight before the event. The Bill must be amended to include a mechanism for prior judicial approval of CCAs in order to safeguard the human rights that we all believe in. I beg to move.

[Baroness Kennedy of The Shaws (Lab) [V]]

My Lords, by and large, I endorse what my noble friend Lord Dubs said. It is right that there need to be greater safeguards than there are in the Bill, which are not sufficient. Having public bodies essentially authorise themselves to conduct surveillance and undercover operations is unsatisfactory.

Criminal conduct authorisations are particularly invasive and warrant more scrutiny. The lack of scrutiny could be remedied by introducing approval from a judicial commissioner. This is where I am refining what my noble friend is asking for. I should declare that I am the president of Justice, which has carried out a significant amount of work on this issue and is the organisation that brings the legal profession’s expertise to it. It is suggested that there is already a cohort of very experienced judges who are used to dealing with difficult, sensitive material, as there would be in these cases.

We recommend that there should be judicial commissioners who are expert judges, senior in the profession, experienced in making quick decisions on sensitive material and—I say this in relation to the urgency issues so that my noble friend Lord Dubs can take that off the table—are available 24/7 when necessary. It is a bit like the need for judges to be on call for injunctions: if something comes up and there is a need for urgency they can deal with that because they have the expertise to sift difficult material and make complex decisions. It is important to emphasise that they are already part of the Investigatory Powers Commissioner’s Office. There is no reason why they cannot adapt. Judges are eminently adaptable, especially when they are of this seniority and experience, where they can do it as a prior scrutiny operation. They are used to dealing with these types of difficult operations and they are not junior members of the judiciary. I am anxious that my noble friend’s suggestions might lead to rather low-level judges overseeing this. They tend to be more inclined to accept things that the police and security services say to them.

For those reasons, I make the plea that the Government look at judicial commissioners as the appropriate place for creating some kind of proper scrutiny. Unfortunately, the Government are currently saying that there is no need for authorisation from a judge or judicial commissioner by way of a warrant, nor approval by the Secretary of State. The flaw in all this is that they are saying that it is enough, as the main safeguard against a public body carrying out unjustified surveillance or inappropriate undercover operations, for a senior official in their own organisation to authorise it. I am afraid that is marking your own homework. Even the most diligent official can struggle to be objective under pressure, particularly if their organisation has to meet targets or achieve certain results because of public demand at a particular time. We sometimes see that in relation to things such as terrorism.

The pre-existing safeguards in the present RIPA regime are already insufficient for the creation of undercover agent operations. Judicial approval is all the more necessary for the exercise of this new power. The Government claim that prior judicial authorisation is not necessary. James Brokenshire MP, the Minister for Security, only last month said in the House of Commons:

“The use of CHIS requires deep expertise and close consideration of the personal qualities”


of that particular undercover operation,

“which then enables very precise and safe tasking.”—[Official Report, Commons, 5/10/20; col. 662.]

I am sure that that is true, but this argument, which prioritises operational need over independent assessment, is not convincing. There is a significant difference between authorising passive undercover observation and proactive criminal conduct.

Our former Director of Public Prosecutions, the noble Lord, Lord Macdonald, has been quoted already. He agrees with me and my noble friend Lord Dubs that there has to be much better scrutiny. He would actually go further than my noble friend and thinks that it has to be at a high level. He says:

“There is no comfort in allowing senior figures in the police or the intelligence agencies the power to sanction lawbreaking, without the need to first obtain independent warrants from judges or some other”


judicial “authority”.

The benefits of judicial authorisation are further detailed in the case of Szabó and Vissy v Hungary, where the court held that it offers the best guarantees of independence, impartiality and a proper procedure. It is particularly pertinent in the case of surveillance, which is, to quote from that case,

“a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society”.

The quote concludes that

“it is in principle desirable to entrust supervisory control to a judge”.

Such scrutiny could be highly compelling for the potential use of CCAs.

Prison Sentences

Lord Dubs Excerpts

Monday 29th June 2020 Lords Chamber

[Lord Keen of Elie]

We consider that the independent judiciary should be in a position to impose the sentence they consider appropriate in an individual case. Releases under the early release scheme have of course been done on an individual basis and in addition, female prisoners have been released under the scheme—pregnant prisoners and those in mother and baby units. According to my figures, as of 22 June a total of 23 women had been released under that scheme.

[Lord Dubs (Lab) [V]]

May I refer the Minister again to the Ministry of Justice research report, published last year, on the impact of short prison sentences and community sentences? Did not that research show fairly clearly that replacing short prison sentences with community sentences would prevent many, many crimes? Would not that be the best way forward?

[Lord Keen of Elie]

We are not satisfied, on the basis of available evidence, that replacing short custodial sentences with community sentences would prevent many, many crimes. As I indicated earlier, a very, very large proportion of those who do receive a short prison sentence have received repeated community orders and gone on to re-offend. It is a very difficult issue, but we plan to improve the whole area of community sentences, and that will play a part, we hope, in reducing re-offending.

Covid-19: Prisons and Offender Rehabilitation

Lord Dubs Excerpts

Thursday 23rd April 2020 Lords Chamber

[Lord Dubs (Lab)]

My Lords, I give my congratulations to the noble Lord, Lord German. I must differ from the noble Lord, Lord Blencathra; he will not be surprised if I say that.

Over a month ago, the Prison Governors Association warned the Government that there was a high risk of Covid-19 because of overcrowding in our prisons and an ageing prison population. It is a risk both to the prisoners and to the prison officers and other staff working there. Half of all prisons in England and Wales have confirmed cases of the virus. We have already heard that, to achieve single-cell occupancy, between 10,000 and 15,000 prisoners would have to be released.

What has happened so far? The Government announced plans to release 4,000 people, but only a handful have been released to date. I think that only 17 of the 70 pregnant women and mothers have been released. For others in prison who have children at home, visiting is now impossible, which is an additional punishment to being in prison, never anticipated when the sentence was first imposed.

We need to increase the scope of the temporary release scheme. We should release pregnant women and mothers, and prisoners who are not a threat to the public—mainly category D prisoners who have already been risk-assessed —should be able to go home on extended release on temporary licence. Of course, immigration detention should be applied similarly.

There is concern that the public would not accept the early release of prisoners, but bear in mind that we are talking about prisoners who would not be deemed a threat to the community. When the courts initially sentenced a lot of the people in our prisons, there was no knowledge of the virus or that being in prison might be a death sentence. There was no knowledge that there would be a breach of family relationships because visiting would be impossible. Had the courts known that, I think they would have approached some of the sentences differently. That is why the Government should approach some of these sentences differently and release some of these people.

Northern Ireland (Executive Formation) Bill

Lord Dubs Excerpts

Report stage (Hansard): House of Lords
Wednesday 17th July 2019 Lords Chamber

I hope that the Minister shares my perspective and will join me and the noble and learned Baroness, Lady Butler-Sloss, in supporting these amendments. They will provide information that will have a positive impact on the support provided to child victims of trafficking in Northern Ireland and in England and Wales.

[Lord Dubs (Lab)]

My Lords, I will comment briefly on this issue. It is a very important one, but there are some difficulties. Before I get on to those, I hope that the noble Lord will support my amendment later this evening about unaccompanied child refugees in Northern Ireland. At the moment, because Stormont is not in action, it is impossible for unaccompanied child refugees to be referred to Northern Ireland, although I know the very hospitable people there would like to see this happen. There is a blockage at the moment because of the impasse at Stormont.

Having said that, I will turn to the substance of the argument about guardians. I talk not only about young people who have been trafficked and exploited but about child refugees generally. The idea of a guardian is a good one, because these people face a whole range of issues, having gone through appalling experiences, and nobody is there to pull everything together. Social workers may do some of this, but the range of issues is wider than might be susceptible to social worker intervention. That is where guardians come in, who take a holistic approach to the needs of the individual young person and can then intervene, help and mobilise other agencies. So I think it is a good idea.

The difficulty is this. As I understand it, there are some guardians in Northern Ireland and some in Scotland. They tend to be social workers with at least five years’ professional experience. These people are pretty hard to come by. I have talked to local authority leaders in London, who say they would love to do this, but they do not have enough qualified social workers with the right experience to take on that responsibility. I am aware of the difficulty. It is a good idea. If we can find a way of dealing with resourcing difficulties, fine. We could start with young people about whom there is evidence that they have been trafficked or exploited more than most child refugees. I would like the Minister to be positive about child refugees in Northern Ireland generally later on.

[Lord Tunnicliffe (Lab)]

My Lords, this is an example of the fact that a number of things which would normally be dealt with by the Executive have become sufficiently urgent to be considered. This seems to be a sensible idea—and, as I understand it, the Minister is going to produce appropriate warm words.

--- Later in debate ---

[Lord Dubs]

My Lords, I speak in support of Amendments 12, 19, 21 and 24 but if I may address what the Minister has just said, it was helpful that he clarified the position. I suspect it may well have shortened the debate significantly as well. I draw much comfort from the way he said that the consultation will not be about whether to do it but only how to do it. As I understand it, it will be about the details for giving effect to the wish expressed in the amendment, not about going back to first principles on whether one should move ahead. That is very important and I welcome it.

I am slightly puzzled by one point. The Minister explained why he wants a longer period for the consultation process on this amendment than he urged on the same-sex amendment. It seems to me that if one can do it on the same-sex amendment in a certain timeframe, one could also do it on this amendment. I wonder whether the Minister might clarify that. Having said that, I welcome the assurances he gave us and repeat: we are not looking at whether but how to implement. That is crucial.

I want to say one or two things briefly because the noble Baroness, Lady Barker, covered a lot of the points. Over the years, many of us have been lobbied and approached by women from Northern Ireland and, before its referendum, from the Republic who were desperate about the situation in which they found themselves. We heard the most painful stories of women who had to travel alone to Liverpool for an abortion, as they could not do it in the comfort of their own homes. We heard stories of doctors fearful of giving advice because of the criminal law, and the story of a mother who was subject to the law because she had produced abortion pills for her daughter. These are painful stories.

I should say that I am an active member of the British-Irish Parliamentary Assembly; indeed, I chair one of its committees. We have been looking at abortion and I wish I could give the House the full details of our report. We produced our committee’s report some time ago. It would normally go to the plenary before being adopted and going into the public domain. However, one DUP member of the committee did not like anything in the report, so we said to him, “Okay, produce an alternative version and we’ll publish it”. That took some time and the result is that although I have our report—in fact, I have his as well—I am not really at liberty to go through it in detail because it is not yet public property. It still has to go before the plenary of the British-Irish Parliamentary Assembly. That is proper, otherwise we would have an interesting report. Of course, that report may well be redundant by the time it is approved if all these measures go through.

However, we still discovered some useful things in producing the report. We talked about the human rights of women and the rights of healthcare professionals. We also talked about whether it should be illegal for doctors to give the advice that they can anywhere else in this country, and so on. I am afraid I am not at liberty to say more, except that we took a lot of evidence. We took evidence in Liverpool, London, Belfast and Dublin, so we got a broad range of opinions on both sides of the argument. I am bound to say that the majority of the committee were persuaded by the strength of the arguments, which are centred on this amendment. This is not something that has just come to me; it is based on a lot of the work that we put into the report, which will see the light of day before too long.

I repeat that I am grateful to the Minister for clarifying the position. I have one point to put to him. Ideally, I would like the timetable for this consultation to be the same as it is for the same-sex marriage consultation. If the Minister can clarify why one is longer than the other, I would be grateful. We look forward to a quick resolution of this terrible dilemma, which faces so many women in Northern Ireland.

[Lord Steel of Aikwood (LD)]

My Lords, I think the House knows that I was the person who piloted the Abortion Act 1967 through the other place. I begin by thanking the Government, and this Minister in particular, for their readiness to respect the overwhelming vote in the House of Commons recently to bring the law in Northern Ireland into line. I was slightly puzzled by the fact that although the Government made the commitment to put right what they saw as deficiencies in the drafting in the Commons, that has not happened, and we have no government amendments before us today. Perhaps the Minister will explain why that is so. I am assuming that we will now go forward and that after the consultation there will be effective introduction of a statutory instrument. Presumably that is what the Government have in mind to change the law in Northern Ireland.

It is worth reminding the House that the 1967 legislation started in 1966, here in the House of Lords. I drew a place in the ballot for Private Members’ Bills and picked up the Bill that had already been passed in this House—it was this House that pioneered the legislation, not the House of Commons. Although we made substantial changes to the Bill, it started here and it is worth reminding ourselves of that. I shall quote something that I have quoted very often. Dr John Marks, when he retired as the secretary to the British Medical Association in 1992 after 40 years, said:

“Looking back over these forty years, it seems to me that the event which has had the most beneficial effect on public health during that period was the passage of the Abortion Act”.


That is a remarkable thing for a senior medic to say, but it is a tribute to this House that that happened.

Three things have changed substantially since the 1967 legislation, which I want to draw to the attention of the House. The first is that in 1967, in terms of the European Union, we were the pioneers in legislating for abortion. Other countries had not done it. One outcome was that, immediately after our law was passed, we started to get some traffic from other European countries. People were coming into Britain and Britain was being portrayed as the abortion capital of Europe. The press was full of stories about taxis at Heathrow Airport bringing women here. This was a great embarrassment to the Government at the time and, frankly, an embarrassment to me as the author of the legislation, but that is what happened. What has changed since 1967 is that the rest of Europe has changed its legislation and has in fact gone ahead of the 1967 legislation. Most European countries have based their law on it being a woman’s right to choose up to the 12th or 13th week of pregnancy. That is very different from the Abortion Act 1967.

I want to stress that a very important document that influenced me and a lot of people at the time was the Church of England report Abortion—an Ethical Discussion, by far the best treatise on the morality of abortion that I have ever read. It influenced my own church, the Church of Scotland and the Methodist Church and I think it influenced opinion in European countries as well. Most of their legislation is based on the belief or doctrine that the Roman Catholic Church put forward right up until the late 19th century, which said that the soul entered the body at the time of animation or quickening. That was the fundamental reason that the European countries introduced this law making a distinction between abortion up to the 12th or 13th week of pregnancy and thereafter. It is very different from the Abortion Act 1967, but it is a fundamental change. Now, of course, the latest country to join in is the Republic of Ireland, so Northern Ireland stands out quite distinctly as having no abortion at all compared not just to the rest of the UK but to the rest of Europe.

The second thing that has changed since 1967 is the composition of the House of Commons. It is very difficult for us to remember that back in 1966-67, when we were debating this legislation, there were only a couple of dozen women MPs in the Commons. One of them was the noble Baroness, Lady Boothroyd, who was in her place earlier today. She gave great support to the legislation, but there were only a couple of dozen women. Now there are a couple of hundred women, and that is why we have had this overwhelming vote in favour of changing the law in Northern Ireland. I pay tribute to the women MPs—Stella Creasy, Diana Johnson, Sarah Wollaston and Rupa Huq in particular—who have promoted this cause. It is a fundamental change since 1967.

The third change since 1967, perhaps the most significant, is the fact that in 1967 we were legislating on the only method of abortion, which was surgery. Now, of course, we have the two abortion pills and that has made fundamental difference to how abortion is treated. In Northern Ireland, because of the lack of law, we have had changes in the administration, first in Scotland and then in England and Wales, allowing women from Northern Ireland to come and use the NHS facilities on this side of the Irish Sea. More than 1,000 did so last year but, frankly, this is not satisfactory. We cannot expect every woman who requires or wants to consider an abortion to have the time and the money to travel across the Irish Sea to use facilities in Scotland or England and Wales, but 1,000 have done so. The fact that these pills are available on the internet but, as has been said, at some risk given the state of the law, has led to an appalling situation where people in Northern Ireland can buy the pills on the internet and run the risk of running counter to the law on abortion in Northern Ireland, which is the Offences against the Person Act 1861. That is why we are right to consider making this change now.

All the medical bodies support the change, including the Royal College of Obstetricians, the British Medical Association and the Royal College of Midwives. In recent weeks we have listened time and again to the fact that the people and politicians of Northern Ireland do not wish to see a statutory trade barrier down the middle of the Irish Sea, and they are surely right about that. However, what we have at the moment is a statutory social barrier down the middle of the Irish Sea, and that is why we are right to remove it.

--- Later in debate ---

[Lord Lexden]

My Lords, the noble Lord, Lord Morrow, has described the case for the amendment and the consultation that would follow. It is overwhelming. I agree with him and I shall vote for the amendment.

[Lord Dubs]

My Lords, I find this disappointing. I thought that the point made by the noble Lord, Lord Morrow, was the subject of the previous amendment but, never mind, we occasionally stray from one amendment to another.

Let me deal with the substance of it. If we were talking, as the noble Lord, Lord Cormack, has on previous occasions—although not tonight—about making use of Members of the Assembly to make general comments about policies in Northern Ireland, we would be in a different place. However, what we see today, under the pretext of giving the Assembly a new lease of life, is the picking out of one issue in the Bill and saying, “That is the way in which we should move forward”. If we want Members of the Assembly to be consulted, they should be consulted over the whole range of policies, rather than us picking the one policy which noble Lords do not like and saying, “We will proceed on that basis”. This is the wrong way to go about it and the principle of consulting the Assembly is negated by wishing to do it only in this partial sense.

We have already discussed the previous amendment and voted on it. I understand that feelings are strong—I respect them even if I do not agree with them—but it is quite inappropriate at this stage to deal with this sort of amendment. If Members of this House want to bring the Assembly back in some form another, let us talk about it—let us do it properly—not pick on abortion as being the pretext for doing it.

[Lord Mackay of Clashfern]

The noble Lord will of course have in mind that the Assembly voted in favour of same-sex marriage. However, that is singled out, simply because the Assembly voted against it before. Therefore, if we are to respect devolution, in view of the suggestions that things have changed completely, it should be given a chance to say so.

[Lord Dubs]

I am afraid that I do not follow the thrust of that argument. We are talking about something that we talked about in the previous amendment. I am saying that we should not talk about giving the Assembly the powers on one issue; there are other issues in the Bill but nobody has suggested that we talk about those. In any case, I believe that the situation in Northern Ireland has changed quite a lot. I do not like bandying public opinion polls around, but the latest figures I have from the 2018 Northern Ireland Life and Times survey, which is equivalent to the British Social Attitudes survey, are that 89% of people in Northern Ireland believe that women should never go to prison for having an abortion, 82% believe that abortion should be a matter for medical regulation and not criminal law, and 71% believe that it should be a woman’s right to choose whether to end her pregnancy. I believe the situation has changed, and we cannot simply say, “The Assembly did that some years ago”. The argument in this amendment was that we should consult Assembly Members now; I say, not if we are dealing with one issue only. We should consult them on everything and bring them back to life that way. I am sorry, but I am not happy about this amendment; it is simply time to have another go at the previous amendment.

[Baroness Smith of Newnham]

My Lords, in the previous set of amendments, the Minister talked about consultation. In his response to this set amendments, could he explain what role would be envisaged for the Members of the Assembly in that consultation?

--- Later in debate ---

Moved by

[Lord Dubs]

20: After Clause 9, insert the following new Clause—
“Reception of unaccompanied refugee children in Northern Ireland: regulations
(1) The Secretary of State must by regulations under section 67 of the Immigration Act 2016 provide for the reception of unaccompanied refugee children in Northern Ireland in accordance with that section.(2) Regulations under this section must be in force no later than 21 October 2019, subject to subsection (3).(3) If a Northern Ireland Executive is formed before the regulations under this section come into force, any regulations made under this section and any extant obligations arising under subsection (1) shall cease to have effect.”

[Lord Dubs]

My Lords, I shall be extremely brief given the hour. I think most Members of the House will be aware that the Government, under Section 67 of the Immigration Act 2016, have a commitment to take unaccompanied child refugees from Europe. The Government say that there is a limit to how many we can take, because English local authorities do not have enough foster places. That is in dispute. What is not in dispute is that people in Northern Ireland are willing to make arrangements to take unaccompanied child refugees. I have talked to people in Belfast and Derry and they say yes.

The problem is that, until now, because there is no functioning Executive, it is not possible for anything to happen, because the civil servants who make the decisions have not felt it possible to agree to take unaccompanied child refugees. I think most people in Northern Ireland, with their traditional hospitality, would be sympathetic. It would be good for British policy. The Home Office would welcome it and, above all, it would be great for some of the child refugees trapped in terrible conditions on the Greek islands, in northern France and elsewhere.

I hope the Government will accept the amendment or at least the principle, so that something can be done to help these children and that Northern Ireland will step up to the mark in the way that other parts of the United Kingdom have already done. I beg to move.

[Lord Morrow]

My Lords, I will speak to Amendment 20A. I want to be brief, not because this subject is not deserving of a full debate, but because I have listened carefully to the previous debate and feel that the issues have been adequately covered. There must be a clear distinction—I know the noble Lord, Lord Hain, has pointed this out very clearly—between the victim-maker and the victim. Consideration of government proposals in the past has been coloured. I said that in the debate on Monday. There is dissatisfaction with people generally, but in particular with those who are campaigning for victims.

--- Later in debate ---

[Viscount Younger of Leckie]

My Lords, the noble Lord, Lord Dubs, has been a consistent champion for child refugees in promoting their interests. I am very grateful to him for his continued commitment to such an important issue, which I know he has discussed with my noble friend Lord Duncan as recently as May. He deserves a reply. It will have to be fairly brief, which I am sure the House will be relieved to hear, but I hope that it is not too brief.

As the noble Lord will know, the UK has contributed significantly to hosting, supporting and protecting the most vulnerable children, including those affected by the migration crisis in Europe. Since the beginning of 2015, the UK has received asylum applications from 12,756 unaccompanied children. In 2018, we received 2,872 such applications—15% of all such claims in the EU. We are the third largest intake country of all the EU member states. I must pay tribute to the vital work of local authorities in looking after these children and providing them with the day-to-day care that is so crucial in enabling them to rebuild their lives.

The Government remain committed to relocating the remaining children up to the specified number of 480 under Section 67 of the Immigration Act 2016. The Home Office continues to work closely with local authorities and strategic migration partnerships across the country. We remain very keen to receive offers of further placements.

As with other amendments, this amendment cuts across devolved matters. The relocation of children is also dependent on the availability of appropriate local authority care placements. I took note of the speech and comments of the noble Lord, Lord Empey, on housing. In Northern Ireland the delivery of most of the required services, such as health, social care and education, is devolved.

The intention behind the proposed new clause is to provide for the allocation to Northern Ireland of children brought to the UK under Section 67. Of course, it is right that the ability to do so should exist; however, such a clause is not required. The regulations that it requires would duplicate existing ones in the Children (Northern Ireland) Order 1995 and the Transfer of Responsibility for Relevant Children (Extension to Wales, Scotland and Northern Ireland) Regulations 2018; they are therefore unnecessary. Whether Northern Ireland health and social care trusts accept children under Section 67 of the 2016 Act is very much a matter for Northern Ireland.

In conclusion, this is an important issue and, given that we are talking about children here, it is important that we, working with Northern Ireland, get this right. I would be happy to continue to discuss and explore our approach to unaccompanied asylum-seeking children with the noble Lord, Lord Dubs. For those reasons, I urge him to withdraw his amendment.

[Lord Dubs]

My Lords, I am grateful for that reply. I appreciate the contribution made by the noble Lord, Lord Empey. I am aware that this would be done not through local authorities but through the health boards in Northern Ireland; I did not want to go into too much detail about that so that I could be brief. The issue concerns unaccompanied child refugees; it is not about housing but about finding foster parents who are willing to have children placed with them through the health boards. It is therefore a fairly simple proposition at one level.

I just hope that there is some way we can unblock this, because I think we are well short of the 480 that the Government have capped under Section 67. There are children in a terrible situation in northern France and on the Greek islands. I thought that if we could just unblock this a bit and give the Northern Ireland people a chance to say, “We have some foster parents here who are willing to take a couple of child refugees,” we could move forward. That is all I am asking.

On the Minister’s assurance that we are going to take this further by discussion, I beg leave to withdraw the amendment.

Amendment 20 withdrawn.

Northern Ireland (Executive Formation) Bill

Lord Dubs Excerpts

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

[Lord Dubs (Lab)]

My Lords, I fully understand why there is a need for the Bill. I am slightly disconcerted by the Minister not explaining in his speech what the Government propose to do about the amendments passed in the Commons yesterday, particularly those in the names of Stella Creasy and Conor McGinn. Do the Government intend to leave the Bill as it is, to make technical modifications to the amendments but keep the spirit of them, or to try to reverse them? It would be helpful to know that, because I was all set to say, “Well done the Commons” and regard those issues as no longer necessary to talk about.

One of the issues that concerns me, and I do not believe that there is a recent example to the contrary, is decisions being made by civil servants—whom I do not disparage; I am sure they are acting as conscientiously and in as well-meaning a way as possible—without an atom of accountability by Ministers or Parliament, or any other form of accountability. I cannot think of an occasion in the last 200 years where that has been the case in this country. We have either had direct rule or devolved rule at Stormont, and in each case there was a measure of proper accountability.

When I was a member of Mo Mowlam’s ministerial team in Northern Ireland for nearly three years, I appreciated that there was clearly no accountability on my part to local people in Northern Ireland. That was why we were keen that devolution should happen. On the other hand, there was quite a measure of accountability in this House and in the House of Commons. Indeed, a number of former Secretaries of State were in this House, so there was a high level of scrutiny of the decisions made—and it was quite formidable having to deal with former Secretaries of State, who clearly knew their stuff pretty well. It seems that there is an enormous democratic deficit here, which is entirely unsatisfactory. I am sure that historians will find evidence in this respect from several hundred years ago, but not recently. This situation is fraught with danger. We have a lack of an Executive, and the potential for men who wish to disturb the situation to do so by using violence—I hope not, but it is possible—to achieve their ends.

Could we not find some sort of interim measure? After all, we have Members of the Legislative Assembly, who are there, looking after their constituents’ interests but not doing much else. Would it be possible to harness their skills, experience and local knowledge to keep the committees of the Assembly going and use them as a sounding board? They would not have authority to make decisions but would certainly be able to pronounce on decisions, or the lack of them, made by the board of civil servants. We could bring them back, and it would be a useful early step towards giving full powers back to Stormont. I cannot see any particular objection to that. I repeat: they would not have the authority to make decisions. The civil servants would not have to listen to them but of course, in a sensible world, they would, and would take account of local feeling. I urge the Government to think about that, because the danger is that if we do not resolve this issue, it will drag on for a long time.

I am going to take a moment to talk about two issues I would like to see on the agenda in Northern Ireland, but which this Bill is probably not capable of dealing with, at least in its present form. One is child refugees, which I know the Minister is aware of. I have talked to people in Northern Ireland, in Derry and in Belfast, and they have said that Northern Irish local authorities and health boards would be happy to take some of the child refugees that we committed to taking under legislation passed here some time ago. If there is a willingness on the part of people in Northern Ireland to take child refugees, there is no reason, in principle, why that should not happen. If local people are willing, there is no principle at stake that runs counter to anything the Assembly might be doing if it were restored. If the Assembly committees were operating, I would urge them, for example, to consider what they could do about child refugees.

As I understand it, the difficulty at the moment is that if one wishes to challenge decisions made by the civil servants, the only way to do it is by judicial review. That is costly, cumbersome, awkward and unsatisfactory. Yet, at the moment there is no method of doing anything about the decisions that are being made. If the Assembly committees were reinstated, at least, they might have some influence on the civil servants. I appreciate that the civil servants would still not be obliged to respond, but I think sensible public officials would listen and do so.

The other policy issue I am concerned about is integrated education. Integrated education in Northern Ireland, on a small scale, has been an enormous success story. Students who have come out of integrated schools, and their teachers, show a level of commitment and an approach to inclusiveness that is a positive step.

At the moment, nothing is happening and we are not moving forward. There are many other issues I could mention in addition to child refugees and integrated education. Can the Minister respond to the suggestion of restoring the Assembly committees and say something about the Government’s attitude to the amendments passed in the Commons yesterday?

Suicide Act 1961: Prosecutions

Lord Dubs Excerpts

Thursday 23rd May 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, the Government do not plan to change the law at this time. Lord Sumption is a distinguished author and retired judge, of course. In his retirement and in delivering his Reith lecture a few days ago, he is entitled to express his personal opinions on morality and the law. I remind noble Lords that, while sitting as a Justice of the Supreme Court in the case of Nicklinson and Lamb in 2014, he said that,

“there is a diversity of opinion about the degree of risk involved in relaxing or qualifying the ban on assisted suicide, but not about its existence. The risk exists and no one appears to regard it as insignificant. There is a reputable body of experienced opinion which regards it as high”.

[Lord Dubs (Lab)]

My Lords, how much longer can we say to people that the only legal thing they can do is take the lonely journey to Switzerland? Surely we as a society can show more compassion to people than that. Can the Minister confirm that all surveys show that the majority of people in this country want a change in the law?

[Lord Keen of Elie]

My Lords, I am not in a position to comment on all surveys because that may embrace ones of which we are not aware. The Government have always taken the view that this is a matter of individual conscience and for Parliament to decide, rather than one of government policy.