Police, Crime, Sentencing and Courts Bill

Lord Paddick Excerpts

Consideration of Commons amendments & Lords Hansard - Part 2
Tuesday 22nd March 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, I will speak to my Motion F2 and the other amendments in this group. I start by joining the Minister in paying tribute to the selfless actions of PC Keith Palmer, who tragically died five years ago today.

I apologise for the length of my remarks, but there are numerous important issues contained in this group. I promise not to spend an average of more than two minutes on each Motion. There are few subjects on which I am an expert, but the policing of public order is one. I was one of a small cadre of advanced trained public order senior officers, and I have extensive experience of policing events. I remind the House that the majority of police forces outside London told HMICFRS that they did not need new public order legislation, and that the limiting factor in policing protests was the number of public-order-trained police officers they had to police protests. A whistleblower who worked for HMICFRS said that the conclusions in its review of public order policing did not reflect the evidence that the inspectorate had gathered. Having read the report in full, I agree. There is no justification for more public order legislation.

In relation to Motion E, the police already have powers to impose any conditions necessary—including an outright ban—on public processions, if a senior police officer reasonably believes that it will result in serious public disorder, serious damage to property or serious disruption to the life of the community, or if the purpose is to intimidate others. Adding a noise trigger to those powers will do more harm than good. As I said in Committee, from my experience, the more conditions you impose on a procession, the more likely those conditions are to be resisted and, therefore, the more police officers you will need to enforce them. As I have said, police forces already say that they do not have enough public-order-trained police officers.

A peaceful protest with no anticipated violent infiltrators and an agreed route—however large—can be policed with a minimum number of police officers and a lot of traffic cones and miles of white tape. Imposing conditions which the organisers are resisting is likely to require between double and five times the number of police officers. This is because confrontation must be anticipated, and the conditions may have to be imposed by force—such as a march wanting to take a different route. An outright ban on a protest, as well as being unlikely to be successful—as we saw with the Sarah Everard vigil on Clapham Common—requires about 10 times as many police officers as are required for a compliant, peaceful demonstration. How many police officers would it have taken to police the Sarah Everard vigil, in the middle of a common, if there had been agreement between the police and the organisers? The more conditions which can be imposed, and the more draconian those conditions, the bigger the drain will be on already overstretched police resources.

The second issue is the impact on trust and confidence in the police, as the noble Baroness, Lady Jones of Moulsecoomb, has just said. The impact of the policing of the Sarah Everard vigil was hugely negative, and the government proposals will simply increase the potential for, and frequency of, such scenes. By banning some demonstrations on the basis of anticipated noise, and not others, the police will be subjected to accusations that they are being political rather than practical. They will be accused of being selective about which protests can take place for political reasons—such as banning demonstrations against war, as they are likely to be enormous and noisy, but allowing demonstrations in favour of war to go ahead, as they are not likely to be very well supported, to take a Russian example. Such a change in the law is likely to draw the police reputation into even more disrepute. In addition, I ask how many times the business of this House or the other place has been disrupted because of noise by protestors. I suggest none —and I do not believe that the House has double glazing. In any event, the police can always divert disruptive demonstrations away from sensitive areas. This change—the noise trigger—is unnecessary and damaging, and we will be voting to support the Labour amendments.

Motion F is about maintaining the current position, where the police can impose conditions on those holding an assembly, a static protest or a meeting but cannot ban it altogether. The Government argue that their proposals simply bring assemblies into line with the powers that the police have in relation to processions, but there are very good reasons why the two should be treated differently.

As I said in Committee, on 13 January 1986 in the House of Commons, the then Conservative Home Secretary, later Lord Hurd of Westwell, explained why processions were being treated differently from assemblies:

“We stopped short of a power to ban”


assemblies

“because we believed that that would be an excessive limit on the right of assembly and freedom of speech. For this reason, clause 14 does not permit the police to impose conditions changing the date and time of an assembly.”—[Official Report, Commons, 13/1/1986; col. 797.]

We agree, and the effect of my amendment is to achieve the same result.

Already, if a senior police officer reasonably believes that an assembly may result in serious public disorder, serious damage to property or serious disruption to the life of a community, or that the purpose of the assembly is to intimidate others, he or she can, under existing legislation, impose conditions on where the assembly takes place; tell an existing assembly to move somewhere else; limit how long it goes on for; and/or limit the numbers attending. The wording of my Amendment 80G in Motion F2 is different from simply insisting on the amendment we made to remove the new provision proposed by the Government on Report —as Motion F1 in the name of the noble Baroness, Lady Jones of Moulsecoomb, does—but the effect is the same.

The only thing the police cannot do under existing legislation is to ban a static protest altogether. The police already have all the tools they need to deal with unlawful assemblies, but to give the police the power to stop people protesting at all smacks of Putin’s Russia, not the United Kingdom of Great Britain and Northern Ireland. I will seek the opinion of the House on Amendment 80G in Motion F2.

On Motion G, we share the concerns of others that all large demonstrations that have the potential to spill over into the road and, either by accident or design, impede vehicular access to Parliament could be banned even when Parliament is not sitting. We believe that this is legislative overreach, relying as it does on the discretion of the police to enforce it or not. However, we do not agree that the police should be able to give permission to allow entrances to Parliament to be blocked when Parliament is in session, so we do not insist on Lords Amendment 82.

On Motion H, we share the concerns of others that those who engage in peaceful sit-down protests, however short the duration, should face the potential penalty of imprisonment for highway obstruction where previously they could have been only fined. As we saw with the Insulate Britain protests, existing legislation, including the application for and enforcement of injunctions, can be successfully used to deal with persistent offenders, including imprisonment for those who breach injunctions. However, with the undertaking given by the Minister at the Dispatch Box that imprisonment is intended to be used only in the most egregious cases, we hope that this increased penalty does not have the chilling effect it may otherwise have done on peaceful protest.

On Motion N, we are grateful to the noble Lord, Lord Coaker, for raising the issue and for the Government’s response.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I regret that we heard the Home Secretary and now the Minister accept the principle of the Opposition’s fast-track public space protection orders in relation to Motion H and use that to justify broader anti-protest amendments as a balance in protecting non-protesters. I regret it but I am not surprised. The danger of advocating any measures that strengthen anti-protest measures is that it sets a tone that suggests that some protesters are good and some are bad, which politicises a general and universal right that I think we should defend. Putting that to one side, I want to oppose the Government’s doubling-down on a noise trigger and follow on particularly from the remarks made by the noble Baroness, Lady Jones, and others who have expressed their opposition so well.

I want to nod to the democratic dilemma of this ping-pong and whether we are actually blocking democracy. When summing up the rejection of the second tranche of anti-protest amendments on Report, the noble Baroness, Lady Williams, chided all of us who opposed them for ignoring the public’s demand that authorities deal with new forms of protest activities such as those we have seen used by Extinction Rebellion and its offspring, such as Insulate Britain.

I disagreed that those amendments would have dealt with those new forms of protest. I thought they were so broad as to sweep up all and any protests, including anyone who might have wanted to protest against net zero, to take an example of a different political side. The state also already has huge powers, whether the Emergency Workers (Obstruction) Act or the Public Order Act, as we have heard, that could have been used to deal with these forms of protest which are a particular nuisance, as the public would have it. Despite that, I felt the Government were at least responding to a particular form of protest about which there has been some public agitation and concern. Therefore, that chiding was listened to.

But now, here we are with government amendments on protest that bear absolutely no relation to the Home Office’s motivation on new forms of protest. I do not think the Government have a democratic mandate for these amendments. Fundamental and foundational democratic rights, such as the right to assemble or protest or the right to free speech, should be protected by an iron curtain. If there is any attempt to undermine them, the presumption must rest with the Government to justify in absolutely clear terms, with a sense of the absolutely exceptional reasons for the proposed changes, any more draconian measures being brought in.

It just does not add up. As I have noticed before, even these new types of protest that apparently upset the public are often silent, so the noise trigger does not apply to them in any way whatever. The authorities should consider proposing accruing further power when limiting the right to assembly, and ultimately the right to free speech, only ever in exceptional circumstances. In this instance, those exceptional circumstances are just not there.

Even more galling is the smoke and mirrors of posing these proposals as protecting the public from the consequences of protest. The public are described as “non-protesters”; as I think the noble Baroness, Lady Jones, pointed out, this turns the public into two different groups of people, but actually the public are the people who go on protests. They might not go on all of them all the time, but it is their right as the public that we are talking about. There is an Alice in Wonderland approach here that gets the issues upside-down and implies that the Government are far removed from the reality that free protests have been crucial for the public over centuries. The denial of that right, whether in Putin’s Russia or China’s Hong Kong, should be a visceral reminder to us here of why protest —warts and all—matters.

Of course not all protests are popular. Many of the modern protests I have mentioned, such as those by Extinction Rebellion, I do not support and they irritate me but, as with all fundamental democratic rights—free speech, free association and so on—it does not matter whether they are annoying, unpleasant or objectionable, or even if those demonstrations are directed in a hostile way against what you believe to be true.

We cannot pick and choose which speech or which protest we agree with and then endorse only the ones that we like. We have to make sure that we do not let those kinds of political prejudices get in the way. We are bound to feel uncomfortable at times when people protest for things that we disagree with, but that is freedom for you. It has never been claimed that living in a free society is safe and cosy. It is designed to make you, on occasion, feel uncomfortable. But there are principles here. As the Court of Appeal notes:

“The right to protest becomes effectively worthless if the protesters’ choice of ‘when and where’ to protest is not respected as far as possible”,


and I stand by that.

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Motion F2 (as an amendment to Motion F)

[Lord Paddick]

Moved by

Leave out from “House” and insert “do insist on its Amendment 80, do disagree with the Commons in their Amendments 80A, 80B, 80C, 80D, 80E and 80F, and do propose Amendment 80G instead of the words so left out of the Bill—

80G: After Clause 55, insert the following new Clause—


“Imposing conditions on public assemblies

(1) Section 14 of the Public Order Act 1986 (imposing conditions on public assemblies) is amended as follows.


(2) After subsection (2) insert—


“(2A) For the purposes of subsection (1)(a), the cases in which a public assembly in England and Wales may result in serious disruption to the life of the community include, in particular, where—


(a) it may result in a significant delay to the supply of a time-sensitive product to consumers of that product, or


(b) it may result in a prolonged disruption of access to any essential goods or any essential service, including, in particular, access to—


(i) the supply of money, food, water, energy or fuel,


(ii) a system of communication,


(iii) a place of worship,


(iv) a transport facility,


(v) an educational institution, or


(vi) a service relating to health.


(2B) In subsection (2A)(a) “time-sensitive product” means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them.”


(3) After subsection (10A) (as inserted by section 57(11)) insert—


“(11) The Secretary of State may by regulations amend subsection (2A) or (2B) for the purposes of making provision about the meaning for the purposes of this section of serious disruption to the life of the community.


(12) Regulations under subsection (11) may, in particular, amend either of those subsections for the purposes of—


(a) defining any aspect of that expression for the purposes of this section;


(b) giving examples of cases in which a public assembly is or is not to be treated as resulting in serious disruption to the life of the community.


(13) Regulations under subsection (11)—


(a) are to be made by statutory instrument;

(b) may apply only in relation to public assemblies in England and Wales;


(c) may make incidental, supplementary, consequential, transitional, transitory or saving provision, including provision which makes consequential amendments to this Part.


(14) A statutory instrument containing regulations under subsection (11) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.””

[Lord Paddick (LD)]

My Lords, because the police will otherwise have the powers to ban assemblies, I beg to move Motion F2.

Police, Crime, Sentencing and Courts Bill

Lord Paddick Excerpts

Consideration of Commons amendments & Lords Hansard - Part 1
Tuesday 22nd March 2022 Lords Chamber

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I will speak briefly to Motion A1. I congratulate the noble Lord, Lord Rooker, on his introduction and support his amendment. Organised food crime costs billions and the police have far more urgent priorities to deal with. Food-borne illnesses cost money in lost earnings and even in some cases result in death. In the current food shortage scenario, it is open season for the unscrupulous to take advantage and exploit the public by producing and selling adulterated food that is not fit for human consumption. They avoid prosecution while the police are completely overstretched. This amendment would assist the FSA to act to prevent future food scandals. I fully support the noble Lord, Lord Rooker, and urge the Government to accept this very sensible amendment.

[Lord Paddick (LD)]

My Lords, we support Motion A1 in the name of the noble Lord, Lord Rooker. Compared with other important issues that the House is considering today, it is a relatively minor one. None the less, it will save no time if we abstain, so if the noble Lord divides the House, we will support him.

On Motion J, although the repeal of the Vagrancy Act is very welcome and something for which Liberal Democrats have been campaigning for many years, it is unfortunate that the Government are still insisting on delaying the repeal of the outdated and unnecessary Act until replacement legislation is in place, as we believe that existing alternative legislation is sufficient. Unlike the noble Lord, Lord Young of Cookham, I heard the Minister say that the Government will commence, not conclude, repeal in 18 months—I wrote it down. If I am right and the noble Lord is wrong, can the Minister tell us how long it will take to repeal the Act in its entirety?

On Motion L, serious violence reduction orders will allow the police to stop and search people without any suspicion that those targeted have anything on them at the time they are stopped and searched that they should not have in their possession. It is another form of stop and search without suspicion, which is notorious for being ineffective. It is even less effective at finding weapons than stop and search based on suspicion and it is disproportionately focused on black people, even compared with stop and search based on suspicion. As a consequence, it is notorious for the damage that it causes to the relationships between the police and the communities they are supposed to help. The Government’s own impact assessment shows that these measures will disproportionately impact black communities and fly in the face of the Government’s response to the report by the independent Commission on Race and Ethnic Disparities.

The police need to work together with communities suffering serious violence to build trust and confidence and to demonstrate that they are on the side of the community—not using powers disproportionately against it, as these new powers, by the Government’s own admission, will continue to do. Even Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services says that the disproportionate use of powers against certain communities is “undermining police legitimacy”.

Like the right reverend Prelate the Bishop of Manchester, we have concerns. We believe that serious violence reduction orders are likely to make serious violence worse, as they further alienate the very communities the police need to co-operate with to identify the perpetrators. However, we have reluctantly agreed to see how SVROs, arguably a manifesto commitment, work in practice in a limited number of pilot areas. We supported an amendment in the name of the noble Baroness, Lady Meacher, on Report that would have strengthened the proposed pilot evaluation and prevented SVROs from being introduced beyond the pilot phase until a report on the pilot had been laid before Parliament and both Houses had agreed to the rollout.

The Minister has given assurances that the pilot will be independently evaluated and that the Government will not continue with the scheme if it proves, as we suspect, to be ineffective or counterproductive. The evaluation must include crime reduction outcomes and community impact assessments. Given those reassurances and the Government’s strengthening of the pilot evaluation, we have agreed with the noble Baroness, Lady Meacher, not to insist on her amendments, but we will be watching the pilots very carefully and listening to the communities affected, whose trust and confidence in the police is essential if knife crime is to be tackled effectively.

[Lord Rosser (Lab)]

There are three issues in this group and I wish to say something about all of them. Starting with Motion A1, I thank the noble Lord, Lord Sharpe of Epsom, for sending me a copy of his letter of 22 February to my noble friend Lord Rooker on Lords Amendment 58, which relates to the Food Standards Agency. As the letter says, the amendment gives powers available to the police under the Police and Criminal Evidence Act 1984 to the National Food Crime Unit of the Food Standards Agency. However, the Commons disagreed with the amendment, giving this reason:

“Because it is premature to confer new search and seizure powers on the Food Standards Agency until the accompanying accountability arrangements, including in respect of the handling of complaints about the exercise of such powers, have been determined.”


Yet Lords Amendment 58 does not lay down a specific date or timescale by which powers available to the police under PACE have to be given to the National Food Crime Unit. It simply says:

“The Secretary of State may by regulations apply any provisions of this Act to investigation of offences conducted by officers of the National Food Crime Unit in respect of search and seizure.”


If I am right, the Commons reason suggests that the Commons and the Government never actually read the terms of Lords Amendment 58. That is surprising, since the letter from the Minister to my noble friend Lord Rooker states that

“the Government agrees in principle that these powers should be conferred upon NFCU officers in order to support their vital work tackling food crime.”

There is no argument about whether the powers should be given, but simply over when they should be given. Lords Amendment 58 would give the statutory authority to the Secretary of State to give those powers but leaves it up to the Secretary of State to decide when the time is right. So what is the problem with the amendment?

The letter from the Minister goes on to say:

“Food crime is a very serious issue and empowering the NFCU to investigate these offences independently will ensure that their specialist knowledge is put to best use and that the burden on police forces is reduced”.


Yet the Commons and the Government have disagreed the amendment. The Minister goes on to say that

“further work is required to fully work through the implications of these proposals to ensure that any exercise of police powers by a non-police body is necessary, proportionate and legitimate and that suitable governance and accountability arrangements will be in place”,

and:

“For these reasons we have tabled a motion to disagree with Lords amendment 58”.


But Lords Amendment 58 does not say that the Secretary of State has to do it; it would simply give the Secretary of State the necessary statutory power to do it if and when the Secretary of State so wishes, which is the point being made by my noble friend Lord Rooker. Frankly, the Government really are struggling to think of a credible argument why Lords Amendment 58 should not be accepted.

The powers currently available to the Food Standards Agency under food law relate to the enforcement of regulatory matters. The NFCU investigates cases of serious crime, often involving offences such as fraud. However, the FSA’s existing powers do not sufficiently equip the NFCU to investigate these crimes fully and lawfully, and to collect evidence to the higher standard needed to prove criminal intent, without the support of partners in the hard-pressed environments of policing or local authorities.

As part of the FSA, the NFCU already has access to sensitive law enforcement powers around directed surveillance, securing communications data and the management of convert human intelligence sources. But NFCU officers have not yet been given essential investigatory powers, including the power to apply to courts for warrants to search premises and seize evidence, or to interview suspects without police officers present. The unit has to rely on the support of partners, including the police forces, to carry out these activities. This means that the courts are not hearing from the experts familiar with the cases, which can increase the likelihood that warrants are not authorised.

As I understand it, competing demands on police time have led to delays in several NFCU investigations. At present, the NFCU needs the police to go to court and swear warrants on its behalf, so investigations are delayed if the police decline or take time to do so, or if the court refuses to authorise the warrant, which is more likely if the person swearing it cannot answer questions about the case. The NFCU also needs the police to be present when warrants are executed, which can lead to delays in the unit being able to carry out searches or seize critical evidence if the police have other priorities. As I understand it, the evidence seized then needs to be taken into police custody before it can be transferred to the NFCU. These issues can and do create delay, which is a problem in running a live investigation and trying to gather evidence before it is moved or destroyed.

I understand that NFCU investigations have been impacted by all the issues to which I have referred. I am also advised that the FSA’s view is that these additional powers are essential to enable the National Food Crime Unit to properly investigate and pursue complex food crime cases. As has been said, this was also identified as a gap in its systems to keep food safe in the independent review by Professor Elliott in I think 2014 following the horsemeat scandal.

In the Commons debate on this Lords amendment, the Minister said that the chairman of the Food Standards Agency had written to the Minister for Crime and Policing on 11 August 2021, expressing concern that the existing powers of the National Food Crime Unit were insufficient for their purpose. The Minister responded in October by expressing support for the request and indicating the Home Office’s intent to work with the NFCU to find a suitable legislative vehicle.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I am grateful to the noble Lord, Lord Rooker, for his comments and to all noble Lords who participated in this short debate. I will try to reassure the noble Lord, Lord Rooker, that we fully recognise the need to make quick progress with the consultation on extending Police and Criminal Evidence Act powers to the Food Standards Agency and then to introduce the necessary legislation as soon as parliamentary time allows.

The noble Lord very properly pushed me on a credible argument for this. I refer back to one of the paragraphs in my opening remarks: we specifically need to work with the National Food Crime Unit, the Independent Office for Police Conduct and Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services on establishing a formal independent oversight framework for the NFCU’s exercise of these powers and the potential for the NFCU to be brought under their respective jurisdictions. The noble Lord referred to gangmasters; that is what happened with the Gangmasters and Labour Abuse Authority. That is likely to require other legislative changes in addition to those provided for in Amendment 58. The issue is one of linked legislation. I have no doubt that the noble Lord will monitor this closely and I will ensure that he is kept informed of all developments. I hope that, on that basis, he will not press his Motion A1.

My noble friend Lord Young of Cookham asked about our commitment to commencing the repeal of the Vagrancy Act just as soon as we have consulted on and legislated for replacement legislation. The noble Lords, Lord Paddick and Lord Rosser, asked me precisely when. Perhaps it would help to clarify this if I read out what the Minister said in the Commons:

“On the undertaking that I was asked to give about the Vagrancy Act, let me say that 18 months is a maximum. If we can act faster, we will, but intensive work will obviously be required to get us there.”—[Official Report, Commons, 28/2/22; col. 855.]


My noble friend Lord Young asked about the consultation. All I can say is that it will take place this spring.

The noble Lord, Lord Rosser, quite rightly asked why the House will not necessarily have a debate on the SVRO pilot. We have done this because, subject to the Bill receiving Royal Assent, we expect the pilot to take two years, having started in early 2023. It will then take some two or three months to complete the evaluation. That timetable firmly takes us beyond the life of this Parliament. I hope that the noble Lord understands that it would not be right for me to commit a future Government or Chief Whip to provide parliamentary time to a debate on the report of the pilot. That is not within my gift or anyone’s gift. But we have said that in principle we endorse the case that has been made for such a debate and we understand the concerns. Therefore, we commit to sending all noble Lords the terms of reference for the independent evaluation of the pilot once they have been finalised and to lay a copy of those in the Library of the House.

In conclusion, I hope that, in the light of the Commons amendments in lieu providing clarity in the Bill on the matters to be addressed through the pilot and the observations about affording this House the opportunity to debate the pilot report, the noble Lord, and indeed the whole House, will support Motion L when we come to it.

[Lord Paddick (LD)]

I am still confused, despite what the noble Lord read from Commons Hansard. There will be consultation and replacement legislation, but will the repeal start in 18 months’ time or will the Vagrancy Act in its entirety be repealed in a maximum of 18 months? I am still not sure.

[Lord Sharpe of Epsom (Con)]

I go back to the statement that I just read: 18 months is a maximum for this issue to be resolved.

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

My Lords, in moving Motion B, with the leave of the House, I will also speak to Motion M. Amendment 70, originally tabled by the noble Lord, Lord Ponsonby of Shulbrede, and passed by this House on Report, would require the Secretary of State to

“establish a review into the prevalence of, and the response of the criminal justice system to, the offence of administering a substance with intent under section 61 of the Sexual Offences Act 2003”.

As I have made clear previously, the Government share that concern about spiking, whether it is spiking of drinks or by needles, which has prompted this amendment and we are taking the issue very seriously.

In September last year, my right honourable friend the Home Secretary asked the National Police Chiefs’ Council to review urgently the extent and scale of the issue of needle spiking. We still have much to learn, as the noble Lord acknowledged at the time, but it is clear from what the police have told us that the behaviour is not exclusively carried out with the intention of perpetrating a sexual assault. Sometimes, financial crime might be a motivation. Indeed, many reported incidents do not appear to be linked to any secondary offending at all. It seems that sometimes the act might be an end in itself, yet all examples of this behaviour are serious in their impact on the victim and in the fear and anxiety felt more widely by those seeking simply to enjoy a night out.

It is also clear that we need a response that goes beyond the criminal justice system and encompasses health, education and the night-time economy. In the Commons, therefore, the Government tabled Amendment 70A in lieu, which is drafted more broadly. It requires the Home Secretary to prepare a report on the nature and prevalence of “spiking”—which, for these purposes, we are defining as

“intentionally administering a substance to someone without their consent and with the intention of causing them harm.”

The report will also set out the steps that the Government have taken or intend to take to address it. The Home Secretary will be required to publish the report, and lay it before Parliament, within 12 months of Royal Assent.

I hope that this addresses the concerns that underpinned the amendment tabled by the noble Lord, Lord Ponsonby, but in a way that enables the Government to consider the issue in the round. In addition, the Government are looking at whether creating a new offence specifically of spiking would help the police and courts to tackle the issue. If we need to take action to do this, we will not hesitate to do so.

Amendments 141 and 142 provide for bespoke new offences to tackle so-called sex for rent. We are very clear that exploitation through sex for rent has no place in society and we understand the motivation behind the amendments. However, as I previously explained, there are two existing offences in the Sexual Offences Act 2003 that can be, and have been, used to successfully prosecute this practice, including the Section 52 offence of causing or inciting prostitution for gain. We recognise the need to stamp out this terrible practice and support those at risk of exploitation. Again, on Report I set out some of the actions that we have already taken, including producing updated guidance for prosecutors and measures in the forthcoming online safety Bill to tackle harmful content on the internet.

We recognise that we need to go further. We are determined to act on the concerns that have been raised on this issue, both in your Lordships’ House and in the other place. Accordingly, we will launch a public consultation before the summer to invite views on the issue of sex for rent and, as part of this, we will look at the effectiveness of existing legislation and whether there is a case for a bespoke criminal offence. Following our commitment to undertake a consultation on this issue, the Commons disagreed with the Lords amendment by a majority of over 100.

All sides of the House share the heartfelt desire of the noble Lord, Lord Ponsonby, to do more to tackle spiking and sex for rent. We are fully committed to doing so. We will publish a report on the nature and prevalence of spiking and the actions that we are taking in response, including consideration of the case for a bespoke offence, and we will be consulting before the summer on the issue of sex for rent. In the light of these clear commitments, I invite the House to agree Motions B and M. I beg to move.

[Lord Paddick (LD)]

My Lords, the amendments in this group were introduced by the Official Opposition and we supported them. We welcome the Government’s undertakings in Amendment 70A in Motion B to prepare and publish a report on spiking, for example of drinks, intentionally and without a person’s consent and with the intention of causing harm, so as to establish the extent of the problem and therefore to inform what measures need to be taken to address it.

We also welcome the Government’s commitment to undertake a consultation on whether the existing law in respect of requiring or arranging sexual relations as a condition of accommodation—so-called sex for rent—needs to be strengthened. The prevalence of the phenomenon and the lack of prosecutions under the Sexual Offences Act 2003, which the Government believe covers these scenarios, indicate that such action is likely to be necessary. We are grateful to the Official Opposition, particularly to the noble Lord, Lord Ponsonby of Shulbrede, for raising these important issues and securing government action to address them.

--- Later in debate ---

I respectfully commend the noble Lord, Lord German, for raising this issue and ensuring that it was fully debated by both Houses. I am particularly grateful to him and the noble Lord, Lord Marks of Henley-on-Thames. He is not in his place, but I thank both noble Lords for their sustained engagement with me and my officials on the issue, which I and my officials have found extremely helpful. However, for the reasons set out, I respectfully invite the House not to insist on Amendment 107 and invite the House to agree Motion C and, in due course, Motion K. I beg to move.

[Lord Paddick (LD)]

My Lords, in relation to Motion C, one of the main recommendations of the Daniel Morgan Independent Panel, led by the noble Baroness, Lady O’Loan, was for the police to be subject to a statutory duty of candour, as has been introduced into the National Health Service, and Lords Amendment 71 sought to establish that. The Government with their Amendment 71A, in Motion C, claim that police officers are already under a duty to co-operate during investigations, inquiries and formal proceedings and that it would be premature to add such a provision pending further consideration by the Government.

The provision to which the Minister referred makes a lack of candour a matter for police misconduct proceedings, except in the most serious cases where a complaint is made by someone who is not a member of a police force and who is directly affected by the conduct. Whether a police misconduct investigation is held, or misconduct proceedings are brought, is a matter for the relevant chief constable of the police force concerned.

Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has today published a report in which it describes the Metropolitan Police’s approach to tackling corruption as “not fit for purpose”. Publishing the report, Her Majesty’s Inspector of Constabulary, Matt Parr, said:

“It is unacceptable that 35 years after Daniel Morgan’s murder, the Metropolitan Police has not done enough to ensure its failings from that investigation cannot be repeated. In fact, we found no evidence that someone, somewhere, had adopted the view that this must never happen again.”


That is why we need a statutory duty of candour. In the case of the issues covered by the Daniel Morgan Independent Panel, there was systemic and institutional withholding of information by the police sanctioned at the highest level. Arguably, the current Commissioner of the Metropolitan Police, who as an assistant commissioner decided to withhold essential information from the panel, would have had to order an investigation into herself under the provisions that the Minister is relying on.

The provision that the Government are relying on is not fit for purpose in the circumstances of police cover-ups, even when there is a member of a police force who is a whistleblower, because the whistleblower is a member of the police force and cannot bring a complaint against his or her own force. However, work is ongoing by the families of the victims of the Hillsborough disaster and the family of Daniel Morgan to ensure that a comprehensive, effective and legally binding duty of candour is imposed on all public institutions. Therefore, we have reluctantly decided not to insist on Lords Amendment 71.

In relation to Motion K, we are grateful to the noble Lord, Lord Wolfson, for clarifying that there is no legal barrier to local authorities setting up and running academies and for the Government’s acknowledgement of the important role that local authorities have played in the past in running secure accommodation for young offenders.

[Lord Rosser (Lab)]

There are, as has been said, two issues here, the duty of candour and secure academies. I note what the Minister said on the duty of candour and must say that our views are rather more in line with those just expressed by the noble Lord, Lord Paddick. One might think it rather odd, particularly at the present time when trust in the police appears to be at such a low level, that the Government and the Commons decided to disagree with such an amendment, but it is their prerogative to do so.

As the Minister said, this issue is not going to be dropped. There are people within Parliament, including ourselves, and people outside Parliament, to whom reference has been made, who intend to pursue the issue of a duty of candour. I think I am right in saying that the Minister referred to the fact that the Government would further consider the position—indeed, that is given as a reason for disagreeing—and that they would come up with conclusions later this year. While indicating that we intend to pursue the issue, we will, with some reluctance, leave this in that context. It is certainly not going to be pushed to one side now. It will be pursued and we will wait to see what conclusions the Government come up with later this year. The issue of trust in the police is a serious matter and I know the Government agree. We need to make sure that the mechanism is in place to improve the levels of trust that currently seem to exist.

On secure academies, the Government and the Commons have disagreed the amendment from the noble Lord, Lord German, which would put explicitly in the Bill that local authorities can establish and maintain secure academies. The aim of the amendment was to put beyond doubt that applications from local authorities to run secure academies would be welcomed and would be considered on their merit, on a level playing field with other providers.

The Government’s response has been that there is no legal barrier to local authorities setting up an entity that could enter into an academy arrangement with the Secretary of State, so there is not a legal barrier to them establishing a secure academy. The Government said that the Ministry of Justice

“will assess in detail the potential role of local authorities in running this new form of provision, before we invite applications to run any future secure schools.”—[Official Report, Commons, 28/2/22; col. 803.]

The Minister also made that point.

Our response in the Commons was that this does not go far enough. We argued that local authorities have the expertise needed to run services and provide care for vulnerable children with a high level of need in a secure environment and that the Government should widen the pool of expertise that providers bring and ensure that local authorities are explicitly brought into the fold when planning for secure academies.

We recognise that the Government have committed to look at the involvement of local authorities in providing secure academies before any new applications are invited, so we will now deal with and pursue this issue outside of the Bill. However, we strongly support the noble Lord, Lord German, in saying that what is needed, and what we will keep calling on Ministers to deliver, is, frankly, not vague statements that a local authority could provide a secure academy but a proactive change to bring the expertise that local authorities have into that pool of providers.

--- Later in debate ---

[Baroness Bertin (Con)]

My Lords, I support the amendment and thank the noble Lord, Lord Russell of Liverpool, for all his support on this issue. I say to the noble Baroness, Lady Kennedy of The Shaws: “What a powerful speech”.

I particularly want to reiterate the points made about police recording. I am really quite depressed that this amendment has had to be laid—depressed as a Conservative Peer, because I have been so heartened by the commitment that this Government have shown on the issue of violence against women and girls. But at the moment, on the issue of misogyny—it exists, it is there and is corrosive; it is huge, if you ask me—there is a lack of grip. There has also been a lack of leadership and accountability, in particular on the issue of recording, and that really matters.

It matters because we should not make promises at the Dispatch Box and not keep them. That picks away at the faith and trust we have in our democracy. I do not wish to make too big a point out of this, but it is important and we do notice it. It also matters because it helps victims to have much more faith in the system; it gives them confidence. We have heard that from chief constables who have voluntarily taken this approach on board. It matters because it helps them do their job as well. It helps them target their resources, understand where the repeat perpetrators are, and target the culture within their own police forces—which, as we know, is a huge problem.

I hope that noble Lords will support the amendment, as I will. It really matters. Misogyny exists, it is corrosive and it needs to be tackled, and this is a very thoughtful and reasonable approach.

[Lord Paddick (LD)]

My Lords, I rise with some trepidation as the first man to speak in the debate—sorry, after the noble Lord, Lord Russell, of course, the proposer of the Motion. Something seriously needs to be done about misogyny in society, as the noble Baronesses said. I think it was the noble Baroness, Lady Kennedy of The Shaws, who said that misogyny is not hatred of women. My understanding is that it is hatred of women who are not subservient to men and who do not allow men to do what they want because they can, because they are stronger or because they think they can get away with it.

I have to say that I do not understand the Law Commission’s assessment that having misogyny as an aggravating factor would undermine the investigation and prosecution of things such as domestic abuse and sexual violence. Racism is treated as an aggravating factor by the courts, yet black victims of domestic abuse and sexual violence are not disadvantaged by having racism as an aggravating factor. So why should women be disadvantaged were misogyny to be an aggravating factor? Perhaps the Minister can answer that question.

I agree with the noble Baroness, Lady Kennedy of The Shaws, that we must deal with misogyny in terms of the actions that have a detrimental impact on women—not the thought but the deed, not the prejudice but the discrimination against women.

Amendment 72B in Motion D1 would create a new offence of harassment or intimidation aggravated by hostility towards sex or gender, where the maximum penalty for the new offence is the same as the offence, under Section 4 of the Public Order Act 1986, of intentional harassment, alarm or distress without any aggravating factor. So there is an issue there.

There is a crisis of misogyny in society in general and in the police service in particular. Urgent, decisive action needs to be taken, notwithstanding the Law Commission’s findings. Creating a new offence, as suggested by the noble Lord, Lord Russell of Liverpool, in the form and with the penalties suggested might not be the right answer, but it is a vehicle to allow the Government to come forward with a better alternative using the Bill. We do not know when the next legislative opportunity will arise and we need to force the Government to take action now.

This urgency is reinforced by the fact that, as the noble Lord, Lord Russell of Liverpool, said, the undertakings given by the Government when we last debated this issue during the passage of the Domestic Abuse Bill—now an Act—to ensure that all police forces flag offences aggravated by hostility towards sex or gender do not appear to be happening. Even if the Government are not convinced that legislative change is needed, surely they must deliver on their commitment to ensure that the nature and extent of the problem of misogyny in society is measured by the recording of such offences by the police. Surely the Government must understand why police forces might be reluctant to record misogyny as a hate crime when there is clear evidence of a culture of misogyny in police forces. That is why they should be compelled to do so by the Government.

I am concerned that the Government, encouraged by the Law Commission, are going into reverse on the issue of misogyny, betraying women who suffer every day from male violence. If for no other reason, we should support Motion D1 and Amendment 72B.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been an extraordinary debate in many ways. It has really gone to the heart of the issue. I pay tribute to the noble Lord, Lord Russell, in the way he moved his amendment.

I will start by addressing a specific point that the noble Lord, Lord Paddick, made about the way sentencing is done in courts. I speak as a magistrate who sits in London. When I sentence on a matter where there is racism as part of the sentence, I explicitly have to say in court what the uplift is because of the racist element. However, when there are other aggravating factors, be they misogyny or any other factor, such as the fact that the victim works in a public-facing way, I am not required to do that, but I can if I wish to. That is a very specific example of the difference in the way sentences deal with particular different types of aggravating factors.

Nationality and Borders Bill

Lord Paddick Excerpts

3rd reading
Monday 14th March 2022 Lords Chamber

As the Minister has mentioned, we spent five days in Committee and three on Report. I appreciate that the Minister, on behalf of the Government, will not be excited by the outcomes of all the votes but, bearing in mind that those amendments did come, and in many cases had support, from all parts of this House, the least we can expect from the Government and the other place is that they give them full and careful consideration.

[Lord Paddick (LD)]

My Lords, following the invasion of Ukraine, it has been interesting to note how the arguments of some noble Lords have acquired a hollow ring. We were implored to listen to public opinion to restrict immigration, but this Bill is not about restricting the over 90% of immigration to the UK that is nothing to do with refugees. This Bill is targeted at asylum seekers like those fleeing Ukraine, who, in recent years, accounted for about 4% of immigration to the UK, and it is aimed at victims of modern slavery: people being trafficked and exploited by ruthless people smugglers as well as many being exploited in this country who were born in the UK.

Public opinion shows that British people welcome refugees; this Bill shuns them. It is consistent with the Government making another grave mistake in using the new-found freedom from the European Union to place barriers in the way of Ukrainian refugees instead of waiving visas as the rest of the EU has done. To paraphrase the Irish Prime Minister yesterday, we can deal with any security issues once they are here—the priority is humanity.

I thank my noble friends Lady Hamwee and Lady Ludford, without whose support I would not have made it through this ordeal, as well as the Labour Front Bench and Back Benches, our respective support staff, Elizabeth Plummer and Grace Wright, and all those organisations and individuals who have supported us in opposing this truly dreadful Bill, including the noble Baronesses, Lady Jones of Moulsecoomb and Lady Bennett of Manor Castle.

I thank the tripod of Ministers—the noble Lords, Lord Wolfson of Tredegar and Lord Sharpe of Epsom, and the noble and learned Lord, Lord Stewart of Dirleton—for supporting the noble Baroness, Lady Williams of Trafford, who has striven uncomplainingly through unreasonably long sittings due to the mismanagement of the timetabling and the deliberately unco-operative attitude of the Government. This House should not have been debating issues of this gravity at 3 o’clock in the morning or voting on them after midnight.

The elected House passed this Bill and, therefore, sadly, so must we. Hopefully, we have taken some of the sting out of it. In the light of Ukraine, simply because it graphically illustrates the barbaric nature of this Bill, we now ask the other place to think again and to leave in place the improvements that we have made. We on these Benches earnestly hope that it will.

[Lord Alton of Liverpool (CB)]

My Lords, I place on record my thanks to the noble Baroness, Lady Williams of Trafford. She has heard a lot of complaints about the things that Members of your Lordships’ House disagree with, and I associate myself with some of those complaints, but this Bill has been something of an endurance test. At a quarter to one in the morning last week, as we debated citizenship fees, I thought that maybe this was not the way to conduct parliamentary business. However, I was particularly pleased that, during the course of our proceedings, the noble Baroness was specifically recognised and raised to the Privy Council; it was a just reward for the way in which she serves your Lordships’ House.

I notice that the noble Lord, Lord Patten of Barnes, has been listening in the Chamber this afternoon. He spoke in our debate last week about the position of young Hong Kongers. Along with the noble Lord, Lord Sharpe, the noble Baroness was incredibly helpful in incorporating into this Bill something that will really benefit young people in Hong Kong who, born after 1997, were not part of the BNO scheme that their parents had been part of. I have already seen emails from people in Hong Kong expressing their thanks to your Lordships’ House.

Finally, I extend my thanks to Members from all sides who supported my amendment on providing safe and secure routes out of genocide in various parts of the world. I hope that that will not be lost in the maelstrom as we now proceed to ping-pong but will be given serious thought, and that maybe further discussion can take place as this Bill now proceeds to another place.

Beyond Brexit: Policing, Law Enforcement and Security (EUC Report)

Lord Paddick Excerpts

Friday 11th March 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, I thank the European Union Committee for its thorough report on the impact of Brexit on policing, law enforcement and security. As noble Lords might expect, I intend to concentrate on crime and policing. Quite remarkably, in the five minutes she was given, my noble friend Lady Hamwee comprehensively covered the civil law implications.

There is good news and some worrying news. I remember that, at a meeting of the All-Party Parliamentary Group on Policing before Brexit, we were briefed by the senior officer responsible for Brexit at the National Crime Agency on the likely consequences of Brexit for policing and security. He gave a very depressing account. So, as I say, there is some good news and some worrying news as far as the comparison with what was predicted is concerned. In particular, the continued access to DNA, fingerprint and vehicle data through Prüm—it is subject to a pilot; I share the concern of the noble Lord, Lord Ricketts, about when that might be completed—is something that we might not have expected to keep.

Although the Government have secured an extradition agreement to replace the European arrest warrant in under a year, where it took Norway and Iceland a decade, as anticipated it is only a partial replacement. On the replacement, I am somewhere between the enthusiasm expressed by the noble Lord, Lord Evans of Weardale, and the dismay of the noble Lord, Lord Hannay of Chiswick. A total of 10 EU states have confirmed that they will not extradite their own nationals to the UK, and two more will extradite only following a political decision to extradite, rather than a wholly judicial one, as the noble Lord, Lord Anderson of Ipswich, mentioned. Concerns when we were in the European Union about a lack of protection for UK citizens subject to European arrest warrants appear to be made worse by the new arrangements. A theme during my remarks will be whether noble Lords should be delighted that things are not as bad as we thought or whether they are better than expected. However, I agree with the noble Lords, Lord Evans of Weardale and Lord Anderson of Ipswich, that security service co-operation has always been on a bilateral basis, and will continue to be, and will be largely unaffected by Brexit.

Going back to the arrest warrant, it appears that EU courts could refuse to extradite suspects to the UK if they are concerned about the UK judicial system, but UK courts could not do the same if they had concerns about the judicial system of an EU state, under the terms of the new agreement. It is clearly a second-class arrangement compared with the European arrest warrant.

As predicted by the senior officer from the National Crime Agency, involvement in Europol and Eurojust has gone from the UK being in the driving seat on strategy and priorities for these organisations to being in a similar position to non-EU members of the EEA; that is, being involved but not participating in such decisions.

Again, as anticipated, the UK will no longer have access to the Schengen Information System, SIS II, and the workaround sounds worrying. Instead of details of wanted and missing persons, terrorism suspects and other alerts being instantaneously available to operational law enforcement officers through the police national computer, the new arrangements rely on EU states double-keying the information into the Interpol I-24/7 system, as the noble Lord, Lord Ricketts, mentioned. Although work is in train to establish an automated system to transfer the data from the Interpol system to the PNC in the UK, relying on EU states to invest significant resources to double-key data into a system that they do not need seems a big risk. Even if they see the need, if the UK is to reciprocate by entering data into the Interpol system, there is no guarantee that they will do so, or do so in 100% of cases, and within a reasonable timeframe, when they have access to the same data via SIS II.

There is also the overarching risk around data adequacy. Although the agreement with the EU is not dependent on data adequacy decisions, it can be suspended if, as the noble Lord, Lord Ricketts, said, either party demonstrates a serious and systematic deficiency in respect of the protection of personal data, including where this has led to a

“relevant adequacy decision ceasing to apply.”

Again, as anticipated, as a third country the UK is held to a higher standard on data protection than a member state, as other noble Lords have said, but no longer able to benefit from the national security exemption which applies to EU states. In that respect, the use of bulk data by the security services may be of concern, and concerns have been raised in the past about the handling of data by the Home Office. The European Data Protection Supervisor has published an opinion on the trade and co-operation agreement which expresses concern about some of the data protection safeguards in this area.

In relation to data protection, perhaps more than any other aspect of Brexit, despite leaving the EU, the UK will have to comply with current and future EU regulation, or risk losing access to data that is vital to our security and the effectiveness of our law enforcement agencies.

Some of the anticipated devastating impacts of Brexit on the security of the UK have been overcome in some respects, mitigated in others, and are in a precarious state in relation to some other important issues. The need for close and continued parliamentary scrutiny is clear, and this report is an important start to that process. However, as the noble Lord, Lord Ricketts, has said, much depends on the operational working and co-operation of law enforcement officers. British police officers have always had a can-do attitude, but I remain concerned that EU-UK agreements may yet thwart UK law enforcement officers’ willingness to achieve pre-Brexit levels of performance.

Home Office Visas for Ukrainians

Lord Paddick Excerpts

Thursday 10th March 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, as to why the changes will not come in until Tuesday, it will be necessary to get the IT systems up and running, and it will take until Tuesday to get that done. What that will do, however, is free up the system generally for those without passports to be helped at VACs, and the whole system will be speeded up that much more quickly. It might assist the noble Lord—and I have given updated figures every day that I have taken Questions this week—to know that, as I understand it, as of this morning, we have now granted 1,305 visas.

[Lord Paddick (LD)]

My Lords, those seeking sanctuary in the UK crossing the channel in small boats, many of whom do not have passports, undergo biometrics and security checks in the UK. Why can Ukrainians, without family in the UK or passports, and nationals of other countries fleeing Putin’s war, not do the same? In particular, women, children and the elderly are unlikely to present security threats to the UK, so what is stopping the Government lifting visa requirements, as EU states have done?

[Baroness Williams of Trafford (Con)]

As I said to the noble Lord, Lord Coaker, yesterday, one thing that we will not do is dispense with security checks. But there will be a lot more capacity at VACs for those without passports, because those with passports can now come here and have their biometrics taken here.

Ukraine: Urgent Refugee Applications

Lord Paddick Excerpts

Wednesday 9th March 2022 Lords Chamber

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

I thank the noble Lord for his questions. As of 9.30 am this morning, 17,700 applications had been made, and there were 1,000 grants of visas. We are expecting a further 1,000 grants of visas by the end of the day. I think that noble Lords will agree that that is a positive trajectory.

The Lille VAC will indeed be set up.

In total, we had almost 1,000 offers for the humanitarian sponsorship pathway, which I counted up from across this House, given the details I received from the right reverend Prelate and another noble Lord yesterday. I want to take back to the Home Office—as I said yesterday that I would—the offers of support which are not just from within your Lordships’ House but are coming in thick and fast from all over the country. They will be very helpful when those families and people arrive in the UK.

[Lord Paddick (LD)]

My Lords, Ukrainian refugees arriving in Bucharest and applying to join families in the UK today are being given appointments on 28 March to have their biometrics taken. What are they supposed to do for two weeks in a foreign city where they know no one, have few belongings and little or no money, when they could be here in the UK with their families?

[Baroness Williams of Trafford (Con)]

The noble Lord makes a very understandable point. As I said yesterday to the House, I know that we are training people as we speak, and surging the capacity and capability of our VAC teams from that region.

Ukraine: Refugees

Lord Paddick Excerpts

Tuesday 8th March 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

The sponsorship scheme, as I have said, should be up and running very shortly, and DLUHC will indeed be the lead department on it. In response to the noble Baroness, I undertake, when there is a number and the scheme is up and running, to come back to the House and give details.

[Lord Paddick (LD)]

My Lords, surely what is needed, as well as numbers, is speed. The UK has admitted only 300 Ukrainian refugees, while the Republic of Ireland has admitted 1,800. Why is the UK dragging its feet?

[Baroness Williams of Trafford (Con)]

I wholeheartedly agree with the noble Lord that speed and numbers are vital. I understand that as of 9 o’clock this morning there were 526 grants under the family scheme. With regard to the sponsorship, however, the noble Lord is right: we need to do it quickly and efficiently.

Nationality and Borders Bill

Lord Paddick Excerpts

Report stage
Tuesday 8th March 2022 Lords Chamber

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

My Lords, following Russia’s invasion of Ukraine, I am bringing forward Amendments 70B to 70N and Amendment 84E to allow visa penalties to be extended to countries that present a risk to international peace and security, or whose actions lead or are likely to lead to armed conflict or a breach of humanitarian law.

The existing provision in Clause 69 will already give the Government the power to apply visa penalties to specified countries that are not co-operating in relation to the return of its nationals. We will be able to slow down the processing of applications, require applicants to pay a £190 surcharge or, critically, suspend the granting of entry clearance completely. These powers are scalable, and they are appropriate both in the context of improving returns co-operation and to take action against regimes waging war on the innocent.

In particular, the Government are minded to use these powers in respect of Russia. The ability to suspend the granting of entry clearance for Russian nationals will send a strong signal to the Putin regime that they cannot invade their peaceful neighbour and expect business as usual. Although we do not believe this war is in the name of the Russian people, disadvantaging Russian nationals in this way, as part of our wider package of sanctions, will contribute to the pressure on the Putin regime.

Specifically, Amendment 70B sets out the general visa penalties provisions from the original Clause 69, which will now apply in both contexts. This includes the detail on the types of penalties that may be applied and the provision to make exemptions. This has not substantively changed from the provisions that noble Lords have already considered.

Amendment 70C sets out when a country may be specified and provides for three possible conditions. The Secretary of State must be of the opinion that the Government of the country have taken action that gives or is likely to give rise to a threat to international peace and security; results or is likely to result in armed conflict; or gives or is likely to give rise to a breach of international humanitarian law. The Secretary of State must take into account the extent of, and the reasons for, the action taken, the likelihood of further action, and such other matters as the Secretary of State considers appropriate.

Amendment 70K broadly mirrors Clause 70, in that it requires the Secretary of State to review the application of visa penalties every two months. If the Secretary of State concludes that penalties are no longer necessary or expedient in connection with the factors in Amendment 70C, penalties must be revoked. This provision is a safeguard to ensure that any visa penalties applied do not remain in place by default.

I am also bringing forward Amendment 84E to ensure that these powers can be deployed in relation to the invasion of Ukraine as soon as the Bill receives Royal Assent, rather than waiting two months after commencement. The sooner that happens, the sooner this House and all Members can collectively act in response to this appalling crisis.

The United Kingdom stands firmly with the people of Ukraine in their struggle with Vladimir Putin’s monstrous and unjustified war. Extending these powers is a crucial step to enabling the Government to respond to hostile actions, such as those by the Putin regime, in the toughest possible manner. I ask noble Lords to support Amendments 70B to 70N and Amendment 84E for the reasons already outlined. I beg to move.

[Lord Paddick (LD)]

My Lords, my first reaction to these amendments was to wonder why they were necessary. Surely it is already possible to refuse to grant visas, or to slow the processing of visas to nationals of a hostile foreign state. The Government seem to be doing a good job of not granting visas to Ukrainian nationals fleeing war, so why can they not refuse to grant visas to Russians?

On that issue, I would like the Minister to explain why the Home Secretary told the other place yesterday:

“I confirm that we have set up a bespoke VAC en route to Calais but away from the port because we have to prevent that surge from taking place.”


Later, when challenged, the Home Secretary said:

“I think the right hon. Lady did not hear what I said earlier. I said that I can confirm that we are setting up another VAC en route to Calais—I made that quite clear in my remarks earlier on.”—[Official Report, Commons, 7/3/22; cols. 27, 40.]


Can the Minister explain why the Home Secretary gave inaccurate information and then blamed the shadow Home Secretary for mishearing?

Why have the Government accepted only 508 Ukrainian refugees—as I think the Minister said earlier in the House—while Ireland has accepted 1,800? What makes the UK so unique? Are these amendments not more of the Government saying that they are going to do something, instead of actually doing something?

I am also concerned about subsection (6), to be inserted by Amendment 70B, which would allow the Secretary of State to

“make different provision for different purposes … provide for exceptions or exemptions … include incidental, supplementary, transitional, transitory or saving provision.”

In other words, the new clause seems to allow the Secretary of State to do whatever she wants—including to allow into the UK whoever she wants, despite a general ban on a particular country. Where is the parliamentary oversight?

Amendment 70C would allow the Secretary of State to specify that a country is posing a

“risk to international peace and security”,

or a risk of “armed conflict”, or a risk of breaching “international humanitarian law”, if that is her opinion. There is no qualification that she should be satisfied on the balance of probabilities or beyond reasonable doubt, for example, but simply that she is of that opinion. Again, where is the parliamentary oversight?

These new amendments allow the Secretary of State to impose, or not impose, visa restrictions and penalties on countries which, in her opinion, pose a threat. This allows her to exempt whoever she thinks should be exempted, without any parliamentary scrutiny, oversight or involvement in the decision-making. Will the Minister consider withdrawing these amendments and bringing them back at Third Reading with the necessary safeguards in place?

[The Lord Bishop of Chelmsford]

My Lords, I am grateful to the noble Lord, Lord Paddick, for his comments and I will add a few further thoughts.

I appreciate that the intent of these proposed new clauses is to bring additional sanction pressure on Russia, and perhaps also other states which threaten peace and security. However, I ask whether there are any concerns that, in practice, this provision may make it more difficult for a critic of, for example, the Putin regime, to reach the UK in safety. Such a person—perhaps one of those involved in the courageous protests against the current war—might seek to reunite with family in the UK for their own safety. They would require a valid visa, not least since the Bill makes it so much harder for those arriving without a visa to apply for refugee status. Is the Minister at all concerned that additional costs and barriers to obtaining a visa may invertedly hurt people seeking to escape authoritarian regimes, and who would be eligible for a visa to come here, more than it would actually hurt the regime itself?

I note the provision in these amendments “for exceptions or exemptions”, but I would appreciate a comment from the Minister on how these might work in a case such as I have outlined.

I arrived in this country seeking refuge and safety shortly after the Islamic Revolution swept through Iran, many years ago now. I was fortunate quickly to be given refugee status and to receive a welcome that, in time, has allowed me to begin contributing back to the society that provided me with a new home. However, I cannot help wondering what the impact might have been had these amendments been part of the law then. After all, I came from a country that was undoubtedly regarded as something of an international pariah, a risk to peace and security in the Middle East and, arguably, more widely. I look forward to hearing the Minister’s response and I hope to receive some reassurances.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, Amendments 72 and 74 are about First-tier and Upper Tribunals being given the ability to order a party to pay a charge in respect of wasted or unnecessary tribunal costs when

“a relevant participant has acted improperly, unreasonably or negligently, and … as a result, the Tribunal’s resources have been wasted”.

Why does such a charge not apply in civil or criminal cases? Is this yet another example of trying to deter asylum seekers from accessing justice and/or to deter lawyers from representing them, as the noble Baroness suggested? I can understand an order requiring one side to pay the other side’s costs, but not the court’s costs. If the Home Office has acted “improperly, unreasonably or negligently”, can the Minister confirm that it will be charged for the tribunal’s time, or is it just the applicants?

This change seems to set a dangerous precedent for the UK judicial system. If the Government were to maintain that they have no plans to extend this principle to other courts and tribunals, they must accept that this is a deliberate attempt to deter asylum seekers from seeking justice and/or to deter lawyers from representing them.

--- Later in debate ---

[Baroness Neville-Rolfe (Con)]

My Lords, I will not delay the House as we are all keen to complete Report stage. Having read Hansard for 3 am on 9 February, I felt that I must return to the charge on Amendment 82, which is eccentrically grouped with the high-profile Amendment 79.

The purpose of my amendment is to ensure that visa provisions can be included in future trade agreements only if they are specifically and separately approved by both Houses of Parliament. The need for this arises because of recent reports of plans to grant visas in trade agreements currently under discussion with India. I know that this has been a long-term aspiration for them. I believe that visas should be the subject of nationality law, such as this Bill. It should be separately agreed, and not bundled up into the CRaG process. Discussion in the CraG process will always look at an agreement in the round in the light of the interests usually concerned with such agreements. It certainly will not want to hold up an agreement for immigration reasons. Yet, as we know from WTO agreements, once provisions are in them, they are legally enforceable whatever happens. Given the population of some countries with which we are negotiating, I am very concerned.

The Minister was reassuring and suggested in Committee that any visa provisions would be confined to mobility issues affecting UK service suppliers seeking to go to India, and that this was precedented in the Japan and Australia agreements. In these circumstances, I cannot see why he cannot agree to my amendment—perhaps with a government tweak to make this explicit and/or to give a categoric assurance that visa provisions in any trade agreement will be confined to this area.

[Lord Paddick (LD)]

My Lords, obviously, these Benches wholeheartedly support Amendment 79 for the reasons explained.

I have some sympathy for the noble Baroness, Lady Neville-Rolfe, as far as Amendment 82 is concerned. One would hope that there would be cross-departmental working on trade agreements so that there would be no agreement to any visa deal without Home Office agreement. However, bearing in mind the apparent disagreement between the Home Office and the Ministry of Defence over the role of the MoD in the channel in relation to migrant crossings, I am not reassured. Perhaps the Minister can reassure the House on this issue.

[Lord Rosser (Lab)]

I too will be brief. I was anticipating a more favourable response to Amendment 79 and the issue of the QR code. I was certainly taken aback to hear from the noble Lord, Lord Oates, that the Home Office has now rejected the bar code. I accept that the Government did not give any specific commitment in relation to the QR code when we discussed the matter in Committee, other than to say that they would take the matter back to the Home Office.

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, I will speak in support of Amendment 80 and, partially, Amendment 81. On Amendment 80, it is common sense—and would be helpful to all sides of the debates on this Bill that arose in Committee and on Report—that we should know more. As the noble Baroness, Lady Neville-Rolfe, has said, whatever our analysis or principles, we would all be helped if we had reliable data in the public square on asylum and immigration because we could then perhaps do some myth-busting.

When you talk to people outside of this House, there are a range of responses to this issue and, indeed, to our discussions here on the Bill. There is some perception that borders are open, and that there are too many people flooding into the UK for society to cope. Some people will even go so far as to say that we are full. I do not think that we are full but, as far as some are concerned, it looks as though we are being overwhelmed. They use the evidence of their own eyes, watching people crossing the English Channel weekly, sometimes daily, with a perception that nothing is being done. I know that this Bill is trying to do something about precisely that, but the perception is that all these people are coming in and nothing is being done.

I have said before that I do not believe that the people making those observations in public are motivated by xenophobia. I have a number of observations. The UK may not be full—it is not full—but if you live in one of the many towns where there is a chronic housing shortage, you are near the top of the housing list and then you get bumped, you may have a perception that it is to do with immigration because some refugees have been given housing. British citizens from all ethnicities can become frustrated and can feel as though there are indeed too many people coming to the UK. We need to have the figures to be able to refute that, or to do something about it. Also, as it happens, you need the figures to plan how we can get more housing and deal with the lack of services—because, actually, the problem is not too many people but not enough services. We need to know, and that is why the data would be helpful.

My second point is about lack of trust, a sense that those in authority are not prepared to tackle this issue; that it is too difficult. Often, that takes the form of people believing that lies are being told about the figures and the real numbers are being hidden. It is in all our interests in restoring trust that we are not hiding any figures. Also, confusion remains over different categories of people wanting to come to the UK. Even in this House, throughout this debate there has been slippage in talking about migrants, immigration, asylum seeking, refugees and so on; they are all too often conflated.

This is further confused by reality. For example, in my view, there are not enough opportunities for unskilled economic migrants to make their life here. I have to persuade my fellow citizens of that; they do not necessarily agree. Regardless, many undoubtedly present themselves as asylum seekers here because of the confusion. I know that it is not a clear picture; none the less, it would surely help to detoxify the issue if politicians were open and honest. That would mean our having much more granular information about the numbers of all types of people living in the UK and their status here.

Finally, I have reservations about Amendment 81 asking for weekly figures of the numbers entering the UK across the English Channel. My reservations are based on the image of some ghastly nightly announcement like those Covid death announcements, which were so often demoralising and not necessarily very reliable. I do worry about scaremongering, or that stats might be used as a substitute for analysis or context, but, on balance, I believe that sunlight is the best disinfectant and the more information in the public realm, the better. This is not because I am particularly enthusiastic about data or into number-crunching, like some other noble Lords. No nation state can claim to have meaningful sovereignty if it does not know or check, or has no control over, the number of people living within its borders. It comes over as indifference to the worries of people who are already citizens here if it looks like we are being evasive about those numbers, or not openly telling them the truth.

[Lord Paddick (LD)]

I hope that I do not disappoint noble Lords, but I generally agree with all the speakers before me, particularly the noble Baroness, Lady Fox of Buckley. We agree with Amendment 80 in principle, in that there is a definite need for accurate immigration data. In particular, the public need to know what net immigration to the UK is—that is, the number coming into the UK set against those emigrating. In particular, they need to know how many of those are seeking refuge from war and persecution, such as those trying to come to the UK from Ukraine, and how many are effectively economic migrants, whether workers or students, who make a contribution to the economy as either workers or consumers. The former—genuine refugees—arguably have a stronger case for coming to the UK than those who want to further themselves or their careers. As I have said numerous times, in recent years only six in every 100 immigrants have been refugees.

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[Noble Lords]

Oh!

[Lord Paddick (LD)]

I thought that I would short-circuit the process. The noble Lord said that Covid had sent immigration into a tailspin. Certainly it has distorted the immigration figures and, although refugee numbers were high in 2021, as the noble Baroness, Lady Neville-Rolfe, said, that is because they were much lower in the previous two years because of Covid.

The International Passenger Survey is not the vehicle by which accurate immigration figures should be counted, as the noble Lord, Lord Hodgson of Astley Abbotts, said. The IPS conducts between 700,000 and 800,000 interviews in a normal year, of which over 250,000 are used to produce estimates of overseas travel and tourism, so I do not even think that it is intended to be an accurate measure of people coming here to live, as such. As the noble Lord said, the people who conduct these surveys come up to you with an iPad and ask you a series of questions, none of which is verified, and participation is voluntary. This is hardly a basis for accurate migration figures.

Can the Minister please tell the House how the Home Office keeps track of those entering and leaving the UK, particularly those entering visa-free from the EU/EEA and the 10 other countries whose nationals can now use the e-passport gates? In particular, how do the Government keep track of how many of those leave at the end of the maximum six-month period? Can the Minister also explain why citizens of the United States, say, can enter visa-free and use the e-passport gates but UK citizens cannot do the same when entering the United States? I thought that we were taking back control of our borders.

Amendment 81, as drafted, would include those crossing the channel by ferry and by Eurostar legitimately, which is not quite what the noble Baroness was seeking to achieve.

[Lord Coaker (Lab)]

My Lords, I will briefly say that, like the noble Lord, Lord Paddick, I agree with most of what many noble Lords have said. The need for accurate immigration data is absolutely fundamental to any discussion on this issue. The noble Baroness, Lady Fox, made this point: one of the things that is important is to distinguish clearly between immigration, asylum and migration. All that gets conflated into one, which is not helpful to the debate or the discussion, and it simply confuses people. It would be interesting to hear from the Minister the Government’s position on data. Irrespective of the debate that we will have about policy, if we are going to build trust, that data basis is essential not only for the public but for us to understand the policy prescriptions that we will debate between ourselves.

This is in line with Amendment 81 of the noble Baroness, Lady Neville-Rolfe: on trust, whatever the rights and wrongs, the decision of the Government to abandon the daily figures for migrants crossing the channel was a disaster in public relations terms, because people knew that the Government were failing on it. It was going up and up, and the Government were making prescription after prescription, in terms of policy, to try to deal with it. In the end, they brought the MoD in, in a confused way where we are still not sure how that is meant to work, and they are going to quarterly figures. What people say to me, and what I think—to be perfectly blunt, although I am not a cynic—is that the Government would not have acted as quickly as that if the numbers were going in the right direction; that is what people think. If people think you hide figures when they are bad, and publish them only when they are good or meet your policy objectives, it is no wonder there is distrust among the public about official statistics.

The amendments before us are absolutely essential. They ensure that we have data which is accurate, objective, allows us to make decent policy decisions, and is a basis for our debates. Can the Minister say something about what the Government’s policy is on data? Also, what is happening with respect to the migrants crossing the channel? What is the figure today, compared to what it was a couple of weeks ago? When can we expect the next figure? When the Government are seeking to build trust in passing the Bill—controversial in its own right—why on earth have they taken the decision, which is hard to comprehend, to produce figures on a quarterly basis? It simply looks as though they are hiding bad news.

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[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise extremely briefly to demonstrate the very great political breadth of the terrier pack of the noble Baroness, Lady Lister. I just tweeted a picture of the text of the amendment with the hashtag #FairFees. It is simply unconscionable that people having to register the right they hold as a British citizen is being treated as a cash cow. To charge any fee to a looked-after child—how incredibly counterproductive is that?

[Lord Paddick (LD)]

My Lords, I thank the noble Baroness, Lady McIntosh of Pickering, for so ably introducing this amendment. I recognise the commitment of the noble Baroness, Lady Lister of Burtersett, and the noble Lord, Lord Alton of Liverpool, on these issues over many years.

Enabling eligible citizens to register their British citizenship is a positive thing, not just for the individual concerned but for society as a whole, for the reasons many noble Lords explained. Fees should not be set so prohibitively high as to prevent anyone who is eligible having their British citizenship officially registered.

We have raised before, and say again: why are immigration and nationality unique among government departments in being required to be self-funding when the services they provide are of benefit to everyone, not just the users of these services? We support the amendment.

[Lord Coaker (Lab)]

My Lords, I join other noble Lords and various noble Baronesses from across the House in welcoming Amendment 83, as tabled by the noble Baroness, Lady McIntosh, the right reverend Prelate the Bishop of Durham, the noble Lord, Lord Alton, and my noble friend Lady Lister. There is universal agreement that fees should not be a barrier to citizenship. I think the Government probably agree with that, so the only plea I make is that they act on it to make sure that fees do not act as a barrier. The Government have the power to do something about this. They can hear what people think about the importance of citizenship as a social glue in our society, and the reverence we all have for it, yet a barrier is placed because of the fee. The Government have it in their power to resolve it. Let us do it.

Nationality and Borders Bill

Lord Paddick Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 2nd March 2022 Lords Chamber

[Lord Rosser (Lab)]

My Lords, Clause 15 puts into the Bill an existing immigration law on inadmissibility that makes any asylum claim inadmissible in a number of circumstances, including if the claimant has passed through, or has a connection to, a safe third country. The result of a finding of inadmissibility is that, unless the Secretary of State decides that there are exceptional circumstances, the claimant will be denied access to the UK’s asylum system for a “reasonable period”, currently defined as six months in Home Office policy, while the UK seeks to transfer them to “any other safe country”. With the huge backlog and delay currently in the system, it is impossible to understand how adding another six months to the asylum process will help an already dysfunctional system.

Clause 15 as it stands is neither acceptable nor deliverable in practice. We also have concerns on the definitions of “safe third state” and “connection”, and on the lack of relevant international agreements. Serious concerns have been raised by the UNHCR and the cross-party Joint Committee on Human Rights, among others. There is an absence of adequate safeguards against returning individuals to countries to which they will be denied rights owed to them under the refugee convention.

Safe returns as part of an international asylum system are not new and are accepted under agreed conditions, but this clause does not provide for safe reciprocal return agreements. Even as it stands, the Government do not have returns agreements with EU member states, namely the safe third countries that refugees are most likely to have passed through. Instead, this provides for cases to be stalled and unilaterally declared inadmissible, without a requirement for a relevant returns agreement but on the basis of dubious connections to another state, where a person may or may not be able to enter an asylum system. We are talking here about asylum, not general immigration.

The clause provides that a claim is inadmissible if a person has a connection to a third state. It then clarifies that a connection can be made with a state that a person had never been to. It further clarifies that a person can be removed to a completely different state other than the one that they have been deemed to have a connection with. The UNHCR has described this as

“a significant and highly problematic departure from international practice and UK case law.”

I will endeavour to be brief. I appreciate that this is Report and not a rerun of Committee, but in Committee the Government accepted on more than one occasion that we needed to have returns agreements in place. There was no direct answer given to a question asked by my noble friend Lord Dubs, who sought confirmation that to date we do not have an agreement with any country for the return of the people whom we are now talking about. This is about asylum. The answer no doubt is that we just do not have any such agreements. Despite saying in Committee on more than one occasion that we needed formal returns agreements in place to return people, the Government later went on to claim that we do not necessarily need formal return agreements in place, and that we could have

“formal and informal, diplomatic and otherwise.”—[Official Report, 3/2/22; col. 1106.]

The reality is that we need formal return agreements in a situation where the number of people the Government intend to deem inadmissible will be high. In that situation, you cannot address this through unstated, unclear, ill-defined, informal ad hoc arrangements, as the Government seek to suggest. This clause is clearly based on the presumption that the Government can persuade other countries who already take greater asylum responsibility than the UK to accept people from the UK and agree to relieve us of a substantial part of the modest responsibility we currently take.

The reality of Clause 15 is that no such agreements are likely to materialise in the foreseeable future, as was clear from the debate in Committee. Dublin III has now gone and not been replaced. That is why my Amendment 32 provides the much-needed safeguards that Clause 15 can come into force only if the UK has safe returns agreements with third states and not before. I beg to move.

[Lord Paddick (LD)]

My Lords, Clause 15 allows the Secretary of State to declare an asylum claim inadmissible if the person has a connection with a “safe third state”. Because it is a declaration of inadmissibility, there is no appeal other than judicial review, and there is nothing to stop the Home Secretary from removing the person to another third state with which they have no connection in the meantime, as the noble Lord, Lord Rosser, has explained. A connection to a safe third state includes where a claim for asylum in that country has been refused, a country where they could have claimed asylum but failed to do so, or where the Home Secretary thinks that it would have been reasonable to expect them to have claimed asylum in another country.

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

My Lords, I thank noble Lords for their contributions. I say at the outset that the Government have been consistent and clear about their belief that people who require international protection should claim asylum in the first safe country they reach, rather than make dangerous and unnecessary journeys to the UK to claim asylum here.

Inadmissibility processes, in particular the first safe country principle, are well established, both in the UK, through long-standing measures in the Immigration Rules, and internationally, including as part of the Common European Asylum System. For example, the procedures directive recognised at recital 22 that

“Member States should not be obliged to assess the substance of an application for international protection where a first country of asylum has granted the applicant refugee status or otherwise sufficient protection and the applicant will be readmitted to that country.”

An overriding objective of these processes is to prevent secondary movements by those who have already reached safety. By definition, that is not about denying safety to those who need it but about having rules which aim to reduce unnecessary travel across borders by those who are already safe.

Amendment 31 seeks to remove third-country inadmissibility powers from primary legislation altogether. It would weaken our ability to deploy inadmissibility processes appropriately and decisively within a strong legal framework, and with that, erode our ability to deter unsafe migration and focus our resources on those most in need of our help.

We are confident that the measures in Clause 15 are fair, appropriate and fully in line with our international obligations. The clause sets out the strict circumstances in which a person’s behaviour or circumstances could lead to inadmissibility action. It requires decision-makers to take account of exceptional mitigating factors that may apply when considering those circumstances. It sets out minimum criteria that must be met by any country before it can be regarded as a safe third country of return, including it being one where a person would not be at risk of persecution, would not experience a breach of Article 3 ECHR rights, and would not be sent to another place where they would be persecuted.

The primary protection afforded refugees under the refugee convention and its protocol is non-refoulement, including no onward refoulement. It is therefore clear that non-refoulement is the primary requirement of “safety”. The same is true for protection afforded under Article 3 of the ECHR. Furthermore, an individual may not meet the definition of refugee under the convention but still require protection. A state may still be safe for them where they will not be refouled, even though they are not a refugee. Therefore, our criteria for determining whether a country is safe, and for subsequently making a claim inadmissible, upholds the UK’s obligations under international law.

Nothing in Clause 15 requires extensive delay in processing inadmissibility decisions. It is right that we consider inadmissibility action and, where appropriate, seek the agreement of the relevant third country, or countries, for the person’s admission there. In some cases, particularly where we are reliant on case-by-case requests to partners, this may take some time, but we have not operated, and will not operate, the inadmissibility system in a way that puts someone in indefinite limbo, as the noble Lord, Lord Paddick, talked about—able to access neither the asylum system in the country of proposed removal nor the UK system. That would be contrary to the object and purpose of the refugee convention. Our existing processes, which Clause 15 strengthens, are clear that where return cannot be arranged within a reasonable period, the person’s claim would be admitted to the UK asylum system for substantive consideration. That ensures compatibility with the refugee convention.

Individuals will have an opportunity to explain their actions and circumstances prior to claiming asylum in the UK, and that explanation will be carefully considered in deciding whether an inadmissibility decision is appropriate. They will also be able to make representations on why any safe third state is not safe in their particular circumstances. Any decision to declare a claim inadmissible and remove an individual will be subject to the standard principles of public law, including rationality. The inadmissibility provisions are therefore compatible with the refugee convention. For these reasons, I do not agree with the amendment seeking to leave out the clause.

Turning to Amendments 32 and 86, as we have stated on previous occasions, the UK-EU joint political declaration made clear the UK’s intention to engage in bilateral discussions with the most concerned member states to discuss suitable practical arrangements on issues around asylum and illegal migration. We continue to do that with EU member states on these issues. We have been clear that formal agreements, though valuable, are not the only way in which an inadmissible asylum seeker may be accepted for removal by a safe third country. I think it is right to seek removals on a case-by-case basis where appropriate and, with the consent of the relevant country, make that removal. This approach has formed part of our inadmissibility process since the changes to the Immigration Rules in December 2020—and, until the Bill’s provisions come into force, we will continue to rely on the Immigration Rules.

The structure of case-by-case removal arrangements will not be uniform for each country of removal. A wide range of factors will still affect the formality and administration around such removals, not least the diverse organisational structures in place in the third country, the levels of centralised and decentralised decision-making, and other circumstances that may be specific to the individual. These arrangements will inevitably vary, but the framework in which cases are considered, within which third countries are assessed for safety and claimants are progressed to removal, will not. We have a clear and consistent approach to these fundamental and important issues, and we stand by our international obligations.

I do not agree that these provisions are unworkable without formal agreements in place. We aim to make the process work as a whole and to return people where appropriate. Where it becomes clear that an individual cannot be removed to a safe country, either because we do not have formal returns agreements in place or because a case-by-case removal cannot be agreed within a reasonable period, the individual’s asylum claim will be considered in the UK. To go back to the assertion made by the noble Lord, Lord Paddick, I say that this will ensure that we do not keep people in limbo, in accordance with our obligations under the refugee convention. I do not think this amendment is required and ask that it be withdrawn.

[Lord Paddick (LD)]

Before the Minister sits down, can she clarify? She insists that the Government’s intention is not to put asylum seekers into indefinite limbo; in other words, if the Government attempt to send them back to a safe third country and fail to do so, at the moment there is a six-month time limit on that. Can the Minister confirm that there is nothing in the Bill to prevent an indefinite status of limbo?

[Baroness Williams of Trafford (Con)]

Given what I have already stated about an indefinite state of limbo, surely the Minister’s words would have some sort of weight. I have also said that any decision to declare a claim inadmissible and remove an individual will be subject to standard principles of public law, and that we will consider their obligation within a reasonable time.

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[Lord Green of Deddington (CB)]

My Lords—

[Lord Paddick (LD)]

Order.

[Lord Green of Deddington (CB)]

If I may—

[Lord Paddick (LD)]

No. My Lords, this is Report. First, we are allowed to speak only once during a debate. Secondly, even if noble Lords were not here for Second Reading or Committee, they should not be making Second Reading or Committee speeches on Report.

We cannot support this amendment because there is no differentiation between documents that are genuinely lost or stolen. We know that people smugglers control the people they are smuggling, including stealing and taking their documents away from them deliberately, so it may not be the fault of the asylum seeker that they do not have a document. This amendment and the other provisions in the Bill seem to ignore the fact that officials and tribunals are quite capable of deciding, on the basis of the evidence, what weight they place on the evidence that is provided to them and what should be considered in terms of the credibility of the claimant, without what is contained in the Bill or in this amendment.

The noble Baroness, Lady Neville-Rolfe, said, on the basis of a freedom of information request, that only 2% of asylum seekers were in possession of a passport. Only four in 10 Americans have a passport. Is it any wonder that those fleeing war in less developed countries, often when normal government services have completely collapsed, do not have passports? If you are fleeing war, if you are being bombed, if you are being persecuted because of your sexuality or your political views, the first thing on your mind is to get out of that country, not to go to the Government and ask for a passport.

This amendment and the related clauses in the Bill that seem to be telling officials and tribunals what interpretation they should put on evidence should not be supported by this House.

[Lord Coaker (Lab)]

My Lords, under Clause 18, where an asylum seeker provides late evidence, this should damage their credibility. Amendment 33 in the names of the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Green of Deddington, would provide that a person’s credibility should also be damaged where that person fails to produce ID documents when they enter the UK or are intercepted at sea. We do not support the clause or believe it should be part of the Bill, so we do not support the addition to it. A person’s credibility should be based, as it always has been, on the full picture and the worth of the evidence that is submitted.

As we have just heard from the noble Lord, Lord Paddick, where people are fleeing the horrors of war and risk to life, they may not bring the right documentation, or it may have been lost or stolen along the route. As we can see from recent horrors around the world, I am not sure that it would be anybody’s first priority to go back to wherever they were to find any documentation they might have—it would be to get out of danger. However, under the amendment of the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Green, they would be penalised: it would be a failure by the claimant to provide identifying documents. Such a carte blanche failure to produce identifying documents would mean that such people seeking asylum would automatically be excluded from doing so. I do not think that that would be something that the country or, indeed, this Chamber would want.

There are other issues I wish to raise that are more relevant to the next amendment; however, if this amendment is put to a vote, we will vote against it.

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[Baroness Lister of Burtersett (Lab)]

My Lords, I shall speak briefly in support of the amendment, which I hope the Minister will be able to respond to positively, given that it has been revised to take account of concerns that he raised in Committee about its wording, as the noble Baroness, Lady Coussins, said.

I want to come back to the question of children. I welcome the publication last week of the factsheet on the Bill’s impact on children—better late than never—although it was only by chance that I found out about it, even though I had raised a number of concerns in Committee about the Bill’s failure to protect children. That point was made strongly by children’s organisations such as the Children’s Society. The factsheet, not surprisingly, echoes what the Minister said in Committee about guidance setting out how decision-makers will exercise their discretion with regard to children and more generally on a case-by-case basis.

However, as the Children’s Society warns:

“Assurances that children will be looked after in guidance are not sufficient. Guidance and case-by-case determinations do not provide the legal protection children desperately need. As highlighted in the recent inspection report of Asylum Casework, guidance is often neither followed nor implemented by Home Office caseworkers. Home Office staff themselves stressed ‘they did not have time to consider each case on its own merits, contrary to the guidance they receive’. Leaving decisions that will have a profound impact on a young person’s life to case-by-case determination can trigger further trauma for young and vulnerable claimants.”


Moreover, when the factsheet states:

“The best interests of the child are a primary consideration in every decision taken in respect of the child”,


forgive me if I am sceptical, given that the Court of Appeal last year ruled that the Home Office had failed to take account of the child’s best interests when setting the fee for citizenship registration—an issue to which we will return on day three.

Therefore, I am afraid that I am not reassured by what has been said about guidance and a case-by-case approach. Can the Minister tell us when that guidance will be published? Will organisations working with children seeking asylum be consulted on it? What opportunity will there be for Parliament to consider and provide views on the guidance? I realise that those questions may need to be referred to the Home Office but, if so, I should be grateful if the Minister would undertake to pass them on and request that the Home Office writes to me with the answers.

[Lord Paddick (LD)]

My Lords, we support the amendment as far as it goes, particularly the emphasis on those subjected to sex and gender-based violence, abuse or exploitation. However, there are many others, such as those from sexually and gender-diverse communities, who will hesitate to bring forward all the evidence that they rely on in support of their claim. As I said in the last group, and as the noble Lord, Lord Wolfson of Tredegar, said, officials and tribunals already weigh evidence and credibility but if, in the Bill, the Government insist on leaning on decision-makers in relation to the weight that they should place on late evidence, then this or an expanded amendment should be included; that should also include children.

[Lord Coaker (Lab)]

My Lords, I do not want to add much to what the noble Baroness, Lady Coussins, and my noble friend Lady Lister said in support of this important amendment. They outlined some of the problems well.

The amendment relates to Clause 25(2), which says:

“Unless there are good reasons why the evidence was provided late”.


It bedevils any Government that as soon as you state, “Unless there are good reasons”, the argument then becomes, “What do you mean by good reasons?” Then you produce a list and people complain that the list does not include everything. So you state that there will be guidance and then the Government do not produce guidance for people to look at to see whether it is worth it or needs to be improved. I appreciate what the noble Baroness and my noble friend said about engagement with the Minister, but these are real issues because people will be excluded from asylum claims on the basis of late provision of the evidence—and we do not know what the good reasons are that will prevent those claimants being excluded as a result of being classified as having given late evidence. It is not satisfactory.

At this stage, on Report, there is this question for the Minister. The list has been produced. The Minister will say, exactly as the noble Baroness, Lady Coussins, said, that by having a list, you will miss people out. That is why the amendment is trying to insert “but not limited to”. This is quite an unsatisfactory situation. Can the Minister not say a little more about what the guidance will say? Can he not give us a little more, in consultation with the Home Office, about whether there could be a draft of some sort, even at this late stage, to give some indication of what the guidance will be on what “good reasons” actually means? I appreciate that this is an ask for the future but the amendment tabled by the noble Baronesses, Lady Coussins and Lady Lister, is extremely important and goes to the heart of the problem with Clause 25 —notwithstanding the fact that many of us do not agree with the clause anyway. In seeking to improve the parts of the legislation that we do not agree with, what “good reasons” means is absolutely fundamental to our understanding.

As I say, I support the amendment; I appreciate that it seems to be a probing amendment. However, these are important issues and the Minister will need to go further to deal with them, I think.

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[Lord Etherton (CB)]

My Lords, I entirely agree with and support what has been said by the noble Baroness, Lady Stroud, the right reverend Prelate the Bishop of Durham and the noble Lord, Lord Cashman. Offshoring while an asylum seeker is having their claim assessed is wrong in principle, oppressive in practice and, critically, lacking sufficient safeguards under the Bill. The noble Lord, Lord Horam, mentioned Australia’s policy of offshoring as a successful process, as he did on Monday. On the contrary, from a humanitarian perspective, Australia’s offshoring shows all the defects and injustices of such a policy.

In Committee, I mentioned the 2013 Amnesty International report This is Breaking People, highlighting a range of serious human rights concerns at the immigration detention centre on Manus Island, Papua New Guinea. I also mentioned and quoted from Amnesty’s follow-up report, which stated that on 16 and 17 February 2014, violence at the detention centre led to the death of one young man and injuries to more than 62 asylum seekers. Indeed, some reports suggested that up to 147 were injured. I quoted more from this report in Committee, but it is not appropriate or necessary to repeat that now.

What is absolutely critical—here I take serious issue with the noble Lord, Lord Horam—is that before any such notion of offshoring can be pursued by the Government under this or any other legislation, certain assurances have to be provided in primary legislation, none of which is addressed in the Bill, the Explanatory Notes or any other guidance by the Government. First, how will asylum seekers have access to legal advisers with knowledge of the law and practice relating to UK asylum claims, which is complex and difficult? Is that going to be done four and half thousand miles away on Ascension Island? Secondly, legal aid and advice is available to refugees in the United Kingdom. Is there anything to suggest that it will be available to refugees in offshoring holding centres? If conditions, as in Australia, in the proposed offshore centre are so bad as to cause physical or mental harm to refugees—whether through physical conditions in the centre or, in the case of single women or LGBTQI people, for example, because of discrimination, harassment, bullying and violence from staff or other asylum seekers—will they be able to have recourse or bring proceedings in the UK, or will they be restricted to such remedies as might be available in the foreign countries?

These are fundamental questions. They cannot be left outstanding while individual arrangements with separate countries are being negotiated or considered. They have to form the legal framework within which any such discussions should take place and be seen on the face of any legislation, including this Bill. Although I raised these points in Committee, the Government have not given any answer on any of those issues and, until they have done so, I suggest that these amendments necessarily have to be carried.

[Lord Paddick (LD)]

My Lords, I want to briefly restate what I said in Committee. Not only is the Home Office seeking the power to remove an asylum seeker to any country while their claim is being considered but it is seeking to remove them to a country and then tell that country, “If you think they are a refugee, you take them; they’re not our problem any more”.

As the noble and learned Lord, Lord Etherton, has just said, according to Amnesty and Migrant Voice, offshoring by Australia effectively excluded legal, judicial, medical, humanitarian and media scrutiny. It has cost it over half a billion pounds a year, according to the British Red Cross, and failed to stop those seeking asylum, including by boat. Evidence to the Public Bill Committee in the other place from independent academics supports these conclusions. The UNHCR has

“voiced its profound concerns about such practices which have ‘caused extensive, unavoidable suffering for far too long’, left people “languishing in unacceptable circumstances’”

and denied them “common decency”.

I accept what the noble Lord, Lord Horam, says: the Government should be looking at every option, but surely they should be taking into consideration the evidence that I have just cited and considered any counterevidence. Then, having worked out its practicalities and decided whether it is to go ahead, they should bring forward legislation—not bring forward legislation and then decide whether they are going to use it.

Clause 28 and Schedule 3, as drafted, should not be part of the Bill. We support all the amendments in this group that seek to prevent anyone being removed from the UK while their asylum claim is being considered, particularly Amendment 35, to which I have added my name.

[Lord Rosser (Lab)]

Amendments 35 and 37 would remove the subsections of Clause 28 and Schedule 3 which allow for offshoring. That is, as we know, the power to export offshore any person in the UK who is seeking asylum without first considering their claim. Let us just repeat: we are talking here about asylum, not general immigration policy.

Clause 28 amends the Nationality, Immigration and Asylum Act 2002, which states that a person seeking asylum cannot be removed from the UK while their asylum claim is being processed. The Bill withdraws that right by allowing the transfer of any asylum seeker to any country listed by the Government. The Government have been somewhat reticent in telling us about the progress of any negotiations they are having with any other countries on this score. I think that is where we hear the term about the Government not wishing to give a running commentary; in other words, “We’re going to keep you in Parliament in the dark about what is going on”.

The Bill is silent on what, if any, legal obligations the UK would consider itself to have towards asylum seekers once their asylum claims have been dealt with. This issue was raised again by my noble friend Lady Lister of Burtersett and others. The United Nations High Commissioner for Refugees has commented that the provisions of the Bill allow the Government to externalise their obligations towards refugees and asylum seekers to other countries with only minimal human rights safeguards, an issue to which my noble friend Lord Cashman referred. The only thing the Government have said is that the model the Home Office intends to proceed with is

“one where individuals would be processed as part of the asylum system of the country that we had an agreement with, rather than people being offshore and processed as part of our asylum system.”

It is not just offshoring—it is also treating and dealing with people under another country’s asylum system rather than ours.

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[Lord Paddick (LD)]

On a point of clarification, the Minister said that the Minister in the other place had given an undertaking that children would not be offshored under this scheme. Does that mean that if a family arrives on UK shores the parents of the child could be sent overseas—offshored—while the child remained in the UK, because of that undertaking?

[Baroness Williams of Trafford (Con)]

I thought that I had made it clear that unaccompanied asylum-seeking children would not be offshored.

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[Lord Green of Deddington (CB)]

My Lords, I offer just a sentence on some of these amendments.

On Amendment 48, we need to bear in mind the risk that if we set up what is now proposed, children who are not yet in Europe will feel obliged to take quite serious risks to get into Europe to take advantage of it. With regard to Amendment 49, Syria is a good example. We decided that something needed to be done. We chose a target that, if you like, was doable—5,000 a year—and we did it. I take some encouragement from that. However, we need to be careful about the numbers, because we are already taking 40,000 a year, and if the Channel gets any worse that could be 70,000. We need to be careful not to lose the public’s support, which underlies all this.

Lastly, on Amendment 51, I have a good deal of sympathy with the comments of my noble friend Lord Alton on the Yazidis and others in Iraq. It may be that we should aim to do something similar to what was done over Syria, but again with a cap, in case the numbers run out of control. That has, indeed, been included in subsection (4) of the amendment, I think.

I mentioned public opinion, which changes from time to time. There is certainly very strong opposition to what is happening in the Channel; there is widespread public feeling that the Government, having promised to reduce immigration, have in fact lost control of the Channel. That, indeed, is the case. We cannot really expect the public to distinguish very clearly between asylum and other kinds of immigration. They are very uneasy, and in taking policy forward we need to keep that well in mind.

[Lord Paddick (LD)]

My Lords, as we have heard, in addition to the family reunion amendments so ably explained by the noble Lord, Lord Dubs, and my noble friend Lady Ludford, this group includes amendments on setting an annual target for the acceptance of asylum seekers into the UK and the acceptance of refugees in specific circumstances—such as those faced by female judges in Afghanistan, the victims of genocide and those fleeing the appalling situation in Ukraine. If the noble Baroness does not take up the challenge set by the noble Lord, Lord Hylton, to combine the best parts of the two family reunion amendments, we will vote for Amendment 48, in the name of the noble Lord, Lord Dubs.

As the noble Baroness, Lady Stroud, explained, the Government need to build capacity in this country to enable us to take in at least 10,000 refugees a year—a number that is seen almost universally as the UK’s annual fair share of global refugees. Without a target to aim for, the necessary arrangements—the infrastructure and capacity in local services—will not be in place to cope with situations, such as Ukraine, that can arise, as we have seen, with relatively little notice. It is no excuse for the Government to say, “We are unprepared”. We must be prepared, and Amendment 49 seeks to ensure that we are.

I reiterate what I said late on Monday: the British people want to help genuine refugees, like those fleeing the conflict in Ukraine. What they worry about, rightly or wrongly, is being overwhelmed by immigrants. I repeat: in recent years only six in every hundred people coming to the UK to live have been asylum seekers. The British people have nothing to fear from this amendment. On the contrary, if it was explained to them, I am sure that they would support it overwhelmingly.

We support Amendment 50—so powerfully spoken to, and in the name of, the noble Baroness, Lady Kennedy of The Shaws—which makes special emergency provision for people at particular risk, such as human rights defenders, including journalists, and minorities. We also support the amendment from the noble Lord, Lord Alton of Liverpool, to make special provision for victims of genocide.

To put beyond doubt the mixed messages from the Government about what they will do to support refugees from Ukraine, Amendment 54A in my name, and signed by the noble Lord, Lord Coaker, puts into primary legislation the requirement to support, by whatever means necessary, Ukrainian refugees who need to come to the UK. We passionately support all the amendments in this group.

[Lord Coaker (Lab)]

My Lords, what a powerful debate we have just had on what is one of the most important parts of the Bill. The noble Lord, Lord Paddick, spoke about wishing that we could inform the public. I sometimes wish—I do not know how you would do it, unless you put it on live television—that the public could hear more of the speeches made in places like this. That would inform the debate and take it forward in a way that allowed people to make their own mind up. It is disappointing that it does not happen.

It is important, in this context, to remind ourselves that we are all wrestling with how we deal with refugees, family reunion and resettlement schemes. The point made by the noble Lord, Lord Paddick, needs to be repeated time and again: this is not about immigration, it is about refugees fleeing persecution and about asylum. That is extremely important.

The noble Lord, Lord Alton, was also right, with his Amendment 51, to remind us of some of the people who need support.

In speaking to her Amendment 50, my noble friend Lady Kennedy referred movingly to her work to support the judges in Afghanistan. She has dedicated her life to trying to do something for people in such situations.

Nationality and Borders Bill

Lord Paddick Excerpts

Lords Hansard - Part 2 & Report stage
Wednesday 2nd March 2022 Lords Chamber

Moved by

[Lord Paddick]

52: After Clause 37, insert the following new Clause—
“Refugees and people smuggling
(1) Within three months of this Act being passed, and every three months thereafter, the Secretary of State must lay a statement before Parliament regarding discussions with the governments and authorities of other countries, including those bordering the English Channel and the North Sea, concerning the steps taken to— (a) increase security cooperation between the United Kingdom and one or more third States to prevent criminal activity in assisting or purporting to assist refugees in travelling to the United Kingdom,(b) increase domestic and international rates of prosecution for those engaged in assisting or purporting to assist refugees in travelling to the United Kingdom,(c) prevent or deter a person from—(i) charging refugees for assistance or purported assistance in travelling to or entering the United Kingdom;(ii) endangering the safety of refugees travelling to the United Kingdom.(2) The statement must focus on steps other than the provisions of this Act.”Member’s explanatory statement
This amendment requires the Secretary of State to update Parliament on the actions that are being taken to tackle exploitation of refugees by people smugglers.

[Lord Paddick (LD)]

My Lords, it is me again. Amendment 52 is in my name and that of the noble Lord, Lord Coaker. As he said on Monday night, the Bill almost exclusively targets victims: victims of war, oppression and modern slavery, and victims of people traffickers. We need to focus the Government on those who are exploiting suffering while profiting from the failure of the Government to provide safe and legal routes. In fact, the more difficult the Government make it for genuine refugees to get to the UK, the more that people will have to rely on people smugglers and the more profit that people smugglers will make.

Amendment 52 would require the Government to keep Parliament informed every three months on the progress they are making to increase security co-operation to prevent people smuggling, increase prosecutions of people smugglers both in the UK and overseas, and the steps they are taking to prevent or deter people from charging refugees to help or purporting to help them to get to the UK and endangering their safety. No doubt the Government will say they do not want to give details of the actions they are taking, as this may give the people smugglers an advantage, but we need to hold the Government to account to keep the pressure on them to do all they can to stop this evil exploitation of the vulnerable.

Amendment 61, which we also support, would make it an offence for people smugglers to advertise their services. Also in this group are measures to protect rescuers. Amendment 59 would ensure that those genuinely helping an asylum seeker, such as someone sailing a yacht in the channel who comes across a sinking dinghy full of asylum seekers, cannot be prosecuted by maintaining the status quo where such a prosecution could take place only if the person was helping asylum seekers for gain.

The Bill seeks to limit sea rescue to those co-ordinated by HM Coastguard or the equivalent, but they may not always be involved, especially in what could be the vital initial stages of a rescue. Amendment 60 would extend this immunity from prosecution to situations where the rescuer reasonably believed that the coastguard would have co-ordinated the rescue if it had known about it. The Bill should focus on people smugglers, and not place good Samaritans at risk of prosecution.

Finally, Amendments 62 and 63 try to ensure that lives are not put at risk from those involved in law enforcement pushing back refugee boats. My noble friend Lady Jolly will say more on that. The Government and the Bill should target the people smugglers while doing everything they can to protect the lives of the vulnerable. I beg to move Amendment 52.

[Lord Coaker (Lab)]

My Lords, I also support Amendment 52, which the noble Lord, Lord Paddick, has just moved. As I said in Committee, it is a particularly important amendment. It is one where the Government will agree with the principle if not the practicalities of actually doing it. We all want to tackle the traffickers and the people smugglers but the Bill lacks any reference to that, a lot of the time. It is almost that it is a given. There is a lot of emphasis on changes to the law with respect to refugees and asylum seekers but not much in respect of traffickers. I think that is what Amendment 52 seeks to do.

The focus also is on security co-operation around the channel, increasing international and domestic prosecutions of people smugglers and interrupting the smugglers’ business model by preventing their crimes. On security and international co-operation, again the Government will say that they are seeking to do that but clearly, if we are to deal with the problem of channel migration and the crossings, there will have to be closer co-operation between France and the UK and between others in Europe and the UK. Amendment 52 seeks to push to the Government to say more about this.

Requiring the Home Secretary to come with updates every three months on what is actually being done to prevent these dangerous crossings and tackle the perpetrators would be of interest to us all. Something clearly needs to be done because, as I think the noble Lord, Lord Green, mentioned earlier, the situation, whatever the rights and wrongs of it, has gone from “a few” to “quite a few” to “a significant number” of people making the crossing. Whatever the Government are doing, it is clearly not working.

I have retabled Amendment 61. I am not going to push it to a vote, but the Government said a lot about it, saying, “Of course we agree with it, of course there shouldn’t be a situation where people traffickers and smugglers can actually advertise on social media to attract people to come to them in order to traffic them across the channel or wherever”. It is clearly ridiculous. I want to push the Government again to say what more they are thinking of doing to tackle that issue, which is clearly unacceptable to us all. Something needs to be done about it.

The Government have got themselves into something of a mess on the issue of “for gain”. We are having to debate whether a vessel that goes to save lives at sea needs a defence because, officially, it would be committing an offence. The words “for gain” target the offence on people smugglers and criminal gangs who do this on a regular and dangerous model, not on the captain of a ship who goes to the assistance of people at risk of drowning. We believe that “for gain” should remain part of the offence. It would be interesting to hear from the Minister how that has been clarified to protect anybody at sea who seeks to prevent life being endangered at sea. Something should be done about that and there needs to be clarification from the Government to provide certainty.

Amendment 62 seeks to ensure that nothing can be done in a way in which lives at sea are endangered. That is why we have tabled that amendment. I am grateful to the noble Baroness, Lady Jolly, for her work and support on that. Schedule 6 is where clarification is needed, because quite extensive powers have been given, including the power to stop, board, divert and detain. All of us would like more clarification on how that will take place. What does diversion mean and how is it going to happen?

In her response—I tried to ask this in Committee—can the Minister explain the difference between the MoD and the Home Office on this? The Home Secretary said that pushback was still government policy, although she did not call it that, but James Heappey MP as Defence Minister said it was not government policy and that the MoD would not do it. We all need to know: if we are giving these powers, who is in control? The MoD is supposed to have operational control, as I understand it, but it is obviously not going to ram or push anyone around with a huge naval ship. Presumably smaller coastguard vessels will be used to do that. Can the MoD order a person to do so? How is that going to work and who do they report to—the MoD or the Home Office? Which has the ultimate sanction?

So what we are seeking to do with Amendment 62, although we oppose that part of the Bill in total, is put something in the Bill that simply says that you cannot act against or divert a vessel in a way that would endanger life. Putting that into the Bill is both necessary and sensible. With that, I support Amendment 52 in the names of the noble Lord, Lord Paddick, and myself.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I have just explained why not.

Can I say something at this point? The noble Lord, Lord Paddick, and the Whip have pointed this out. Generally, after the Minister has spoken, the person who moved the amendment can ask questions of elucidation, but it is not generally the case that people who have not spoken in the debate then stand up and start adding to it. I know the noble Lord, Lord Kerr, is going to be cross with me yet again, but this has been quite a long and arduous process, and it would be helpful for the House if the Companion were to be followed.

[Lord Paddick (LD)]

My Lords, to follow up on that point, my understanding is that anybody is entitled to ask a question of clarification on something that the Minister has said but not to engage in debate, which is allowed in Committee but not on Report.

I thank the noble Lord, Lord Coaker, for his support and the Minister for her comprehensive response on these amendments. As I anticipated, the Government want to hide behind tipping off people smugglers as to what the Government are doing to tackle the problem. But how do we hold the Government to account if we do not know what is happening, as far as Amendment 59 is concerned, on the issue of “for gain”?

I understand the example the Minister gave of the chap who had money in his wallet, and so forth. One understands that prosecutions are not always possible, and at least the money was recovered. But there is a defence once charged in the Bill; there is not immunity from prosecution. So, somebody who comes across a sinking dinghy in the channel and rescues the asylum seekers could be subject to a prolonged investigation. The Minister talked about a full examination of the circumstances. It does not prevent the person being arrested, potentially, and being held either on police bail or under investigation for a long period to examine the circumstances. The defence in the Bill is only once charged.

--- Later in debate ---

[Lord Green of Deddington (CB)]

My Lords, this is more important than it looks. Frankly, it is rather absurd that people can turn up in their tens of thousands on our beaches and there will have been no offence. That is not to say that they should be charged, but there must surely be some legal impediment to people just turning up.

[Lord Paddick (LD)]

My Lords, the Bill does two things. It criminalises and treats genuine refugees as second class if they arrive via a so-called safe third country. Also, this clause potentially criminalises everyone who arrives in the UK to claim asylum even when they have flown directly to the UK. It effectively criminalises all asylum seekers arriving in the UK unless they have been resettled through a government scheme—resettlement schemes that range from few and far between to non-existent.

From what the Minister said in Committee, I understand that the idea of the clause was to ensure that migrants crossing the channel in small boats who were rescued and brought to the UK could still be prosecuted, even though they had arrived legally. She said that the new offence would cover all claimants

“who arrive without the necessary entry clearance.”—[Official Report, 8/2/22; col. 1512.]

Someone who secures a visitor visa, for example, flies non-stop to the UK and claims asylum at the UK border would be guilty of an offence because their entry clearance was only to visit, not to claim asylum and stay permanently.

The Minister tried to reassure the House that this was not the Government’s intention, that the offence was intended to be prosecuted in only the most egregious cases and that the Government would be talking to the CPS. There are two issues with this. First, as the noble Baroness, Lady Chakrabarti, said in Committee, this is the very definition of an overbroad criminal offence that relies on the offence being prosecuted in only a subset of cases. The second issue is the potential for government interference with the independent Crown Prosecution Service. The next thing will be the Government telling the CPS to prosecute some political activists and not others. This is a very dangerous road to go down.

Amendment 55, in the names of the noble Lords, Lord Coaker and Lord Blunkett, to which I have added my name, would remove the offence of arriving in the UK without valid entry clearance from the Bill. We will vote with the noble Lord, Lord Coaker, when he divides the House.

[Baroness Williams of Trafford (Con)]

I thank both noble Lords for speaking to these amendments. I have listened carefully to the arguments raised by the noble Lords, Lord Coaker and Lord Paddick, and I appreciate the reasoning behind the amendments in their names, but I remain convinced that we must have offences which apply to arrival in the UK in addition to those of entry.

I cannot overstate that the differences between the terms “entry” and “arrival” are fundamental to how offences are identified and prosecuted. The definition in Section 11 of the Immigration Act 1971 concerning entry is based on assumptions that no longer address the methods that have emerged for migrants to evade our border controls.

It might help if I explained the effect of the amendment and the consequence of not getting it right. I remind the House that the Court of Appeal has held that an asylum seeker who merely attempts to arrive at the frontiers of the United Kingdom to make a claim is not entering or attempting to enter the country unlawfully in accordance with the definition of “entry” in Section 11. This means that individuals who step foot in the UK because their small boat was rescued by Border Force do not “enter” the UK in the technical sense. They simply “arrive”. Where there is no unlawful entry or attempt at entry, the unscrupulous people smugglers sending people across the channel in unseaworthy vessels that require rescue cannot be held to account for facilitating a breach of immigration law.

Amending these offences to refer to “enters” rather than “arrives in” renders them unworkable. It is wrong that an individual and those facilitating their journey should be able to evade sanction by allowing themselves to be intercepted and brought to shore. It encourages individuals to unnecessarily endanger themselves and others by travelling in small craft wholly unsuitable for the crossing.

If there is no offence of illegal arrival and if, as proposed in Amendment 58, this is not added as a breach of immigration law for the facilitation offence, then we will have practically eroded our ability to prosecute any people smugglers who are involved in risking migrants’ lives by putting them into small inadequate boats.

It is right that we should ensure that the tools exist to deter and prevent these actions for the good of all. We must provide the CPS with the ability to prosecute appropriate cases when in the public interest, so Clause 39 must refer to both those who enter the UK and those who arrive in the UK. I appreciate the concerns raised but am convinced that the proposed amendments, if accepted, would give only comfort to those who exploit and persuade people to make the perilous and unnecessary journey across the English Channel.

The noble Lord, Lord Paddick, made a point about interference with the CPS. That is not the case. An MOU between immigration and the CPS has been updated and will be published. With those words, I hope that noble Lords will be happy not to press their amendments.

--- Later in debate ---

This is a real issue identified regularly by front-line agencies and is clearly a serious barrier to supporting victims and countering crime. This is the consequence of our own policy-making, and I am sure there must be a way to resolve it. This amendment provides one solution, which is why I support it. I hope that if the Minister rejects this amendment she will at least undertake to come back with an alternative route forward so that we are not forced to go through this again in future Bills.

[Lord Paddick (LD)]

My Lords, we support this amendment—I have added my name to it. The only question I have in addition to what the Minister has been asked so far is whether it is right that somebody who has been raped and who comes forward to the police as a victim, although she may not be subject to immigration control while a prosecution is ongoing, as soon the case is finished, she could be deported from the country because the police, at the end of the case, will share that victim’s immigration status? Can the noble Baroness not understand that victims are not going to come forward and report dangerous criminals who have raped them if that is the threat?

[Baroness Williams of Trafford (Con)]

My Lords, I understand the sentiment behind this amendment, which is to ensure that migrant victims of crime come forward to report that crime to the police and are not deterred from doing so because of concerns that immigration enforcement action might be taken against them. Our overriding priority is to protect the public and all victims of crime, regardless of their immigration status. Guidance issued by the NPCC, updated in 2020, makes it clear that victims of crime should be treated as victims first and foremost.

The NPCC guidance provides that police officers will not routinely search police databases for the purpose of establishing the immigration status of a victim or witness, or routinely seek proof of their entitlement to reside in the UK. Also, police officers must have grounds to suspect that a person does not have legal immigration status and must give careful consideration, on a case-by-case basis, to what information to share with the Home Office and when. The reasons for sharing information must be recorded and the victim advised what has been shared and why.

There can be benefits to sharing information as it can help to prevent perpetrators of crime from coercing and controlling their victims because of their insecure immigration status. Providing the victims with accurate information about their immigration status and bringing them into the immigration system can only benefit them. This amendment would prevent that.

It might help noble Lords if I gave one example of the negative effect of the amendment. The referral of information about a migrant victim or witness enables the Home Office to provide information on Home Office systems to assist the police and other authorities to establish vulnerabilities and safeguarding needs and to assess whether the migrant might be eligible to qualify for leave under the Immigration Rules or bespoke routes. Securing immigration status may allow eligible migrants access to a range of benefits, including health and housing provisions. There are several bespoke routes available to migrant victims and witnesses of crime which enable eligible individuals to regularise their status.

Under this amendment, the Home Office could not lawfully process any applications or requests for relief from enforcement action where details of the crime reported are relevant to those applications or requests, because the applicant’s personal data cannot be used for an immigration control purpose. The noble Lord, Lord Paddick, talked about rape, and examples would include applications or requests made for the destitute domestic violence concession, the foreign witness policy or the immigration enforcement migrant victim protocol, which is due to be introduced later this year.

I know that is not what the sponsors of the amendment had in mind, but, were it to be added to the Bill, that would be one of the effects. More broadly, noble Lords will understand that the Government are duty bound to maintain an effective immigration system to protect our public services and safeguard the most vulnerable from exploitation because of their insecure immigration status.

I have previously said that we need to focus on ensuring that victims with insecure immigration status can access the support they need, and that is the priority. Despite the best intentions, this amendment does not achieve the outcome it seeks. The question of leave to remain is inextricably linked to the conditions attached to that leave, so it is impossible to waive the no recourse to public funds condition in isolation from consideration being given to a person’s immigration status. What is more, it has been a long-standing feature of the immigration framework operated by successive Governments that only those with settled status should have access to public funds.

The public rightly expects that individuals in this country should be subject to our laws, and it is right that those with irregular immigration status are identified and that they should be supported to come under our immigration system and, where possible, to regularise their stay. We regularly help migrant victims by signposting them to legal advice to help regularise their stay.

This is the wrong amendment at the wrong time. If adopted, it would prevent victims obtaining the support they need, whether under the DDVC or other routes such as seeking asylum. I hope, on the point from the noble Lord, Lord Coaker, about listening, that the noble Lords have listened and reflected carefully on the unintended consequences of their amendment and will agree to withdraw it.