Illegal Migration Bill

Baroness Butler-Sloss Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I speak in support of Amendment 4 and draw attention to my entry in the register, with regard to support from RAMP for this and later amendments.

It is vital that, in line with our international obligations, we uphold the human rights of men, women and children who seek asylum in the UK. It is worth remembering what Theresa May—no softy when it comes to immigration matters—said in the Commons:

“That matters because of the reputation of the UK on the world stage, and because the UK’s ability to play a role internationally is based on our reputation—not because we are British, but because of what we stand for and what we do”.—[Official Report, Commons, 13/3/23; col. 592.]


Related to this is a warning from the Council of Europe Commissioner for Human Rights in her letter to the Lord Speaker that the Bill, as summarised in Clause 1, would

“provide an incentive to other states, in Europe and beyond, to follow the UK’s lead in evading and abdicating its responsibilities to people in need of protection”.

Given that much of the Bill is justified with reference to incentives, one hopes that this warning might resonate with Ministers. If other countries follow suit, we could well find that we have more, not fewer, asylum seekers trying to cross our borders.

Of the conventions listed, I will focus just on those relating to refugees and children, although I also draw attention to the concerns raised by Redress, which warns that the Bill threatens to cause the UK to violate key provisions of the UN convention against torture. I will not repeat the highly damaging verdict of the UNHCR, other than to note, as did my noble friend, the unprecedented strength of its criticism, reflected in the stark warning that the Bill amounts to an “asylum ban” in contravention of the refugee convention. Every briefing that we have received, including from the EHRC and the Law Society, echoes these concerns about the refugee convention. Indeed, the UN special rapporteur on the human rights of migrants, and other UN rapporteurs, have urged the Government to halt the Bill’s passage so as to bring it

“in line with international human rights standards”.

However, according to the Home Secretary, such claims are “simply fatuous”. She put forward two arguments in the Commons to justify her position. The first is that while the

“convention obliges parties to provide protection to those seeking refuge. It does not require that this protection be in the UK”.

However, the UNHCR explains that, under the Bill, the Home Secretary

“will not be required to assess whether removal”

to a supposedly safe country

“would be safe or reasonable for a particular individual or whether they will be able to claim asylum there. Individuals would have very limited opportunities to present evidence of the risks they would face”.

Thus, it warns that the removal duty placed on the Home Secretary

“creates real and foreseeable risks of refoulement”.

This is echoed by the UN rapporteurs. The proposed responsibility-sharing arrangements lack the required safeguards to protect the rights of asylum seekers and refugees.

Secondly, the Home Secretary prayed in aid Article 31 of the convention which, she argued,

“is clear that individuals may be removed if they do not come ‘directly’ from the territory where their freedom is threatened. Denying those arriving illegally from France, or any other safe country”

is, she concluded,

“therefore, entirely consistent with the spirit and letter of the convention”.—[Official Report, Commons, 13/3/23; col. 580.]

However, the UNHCR is clear that it is not consistent. Its legal observations on the Bill are explicit:

“Mere transit in an intermediate country cannot be considered to interrupt ‘coming directly’”.


As the EHRC points out, because of geography, “direct” routes to the UK are rarely available. Exploiting our geographical position to abdicate responsibility for asylum seekers shames us as a country. I therefore repeat the question that I asked at Second Reading: can the Minister explain why we should accept the Government’s interpretation of the refugee convention over that of the body with supervisory responsibility for it? That body was recently described by another Lords Minister as “a key partner”.

The UNHCR also warns that

“The Bill is inconsistent with the UK's obligations under the UN Convention on the Rights of the Child … because of the many ways it threatens or undermines the safety and welfare of children”.


I will not go into detail here, because a number of amendments specific to children will follow, but it is worth noting now that, in the view of UNICEF, which is mandated by the UN General Assembly to uphold the UNCRC and promote the rights and well-being of every child, children should be removed from the scope of the Bill in order to uphold the Government’s

“duties to act in the best interests of the child”

as set out in the UNCRC. Similarly, the Children’s Commissioner, who has demonstrated a passionate concern about the Bill’s implications for children, has warned that it

“would place the UK in clear breach of its international law obligations under a range of children’s rights treaties”.

The equality impact assessment, which finally appeared on the morning of Second Reading, assures us that

“the Home Office will continue to comply”

with the duty under Section 55 of the Borders, Citizenship and Immigration Act 2009

“to have regard to the interests of children as a primary factor in immigration decisions affecting them”.

As UNICEF reminds us, this duty was enacted in order to implement the UNCRC “best interest” requirement. Yet, the equality impact assessment tries to wriggle out of the duty by arguing that:

“The duty does not mean that it is the only factor that must be considered”.


In effect, it is being treated as a secondary rather than a primary factor, an issue to which I will return in a later group. We still await the child rights impact assessment called for by the Children’s Commissioner as essential to ensure consistency with the best interest requirements. It was promised “in due course” in a Written Answer on 17 May, so where is it?

Relevant here too is the position of the devolved nations. The Northern Ireland Human Rights Commission has warned that the Bill could contravene the Good Friday/Belfast agreement and Windsor Framework in a number of ways. Has the Minister read its critique, and will the Government be publishing a response to it? The Welsh Civil Society Forum points out that Wales’s “child first, migrant second” approach, in line with its incorporation with the UNCRC, risks being undermined. As the Constitution Committee points out in its critical report on the Bill, while

“international relations are reserved matters … observing and implementing international obligations are devolved”.

What is the view of the devolved legislatures?

In conclusion, we must take note of what national and international human rights bodies are saying about this Bill. To echo a point made by other noble Lords, if the Government genuinely believe that the Bill meets the obligations in the conventions listed in the amendment, why not accept it now? Refusal to do so will only reinforce the belief of the UNHRC and others that this Bill marks the abrogation of the UK’s global responsibilities.

[Baroness Butler-Sloss (CB)]

I would happily support all the amendments, although I would prefer Amendment 4, which I think expresses it more accurately, perhaps, than the others. I only really want to make one point because so many points have been made with which I entirely agree and they are almost unanimous across the Committee, as perhaps the Committee is noticing. We heard from other speakers that the Prime Minister put his name to that convention or treaty earlier in Reykjavik in which he is supporting international conventions. The Minister in the other place spoke about caring about international conventions. The question I want to ask the Minister is: looking at this Bill, looking at how it has been pulled apart in Clause 1, does the Minister really feel able to say that the Government care at all about international obligations?

[Lord Horam (Con)]

My Lords, I want to comment on the speech made by the right reverend Prelate the Bishop of Chelmsford just now. She made a very important point which the Committee should take note of. She said that the amount of work that went into the programme to deal with people fleeing Ukraine was significant and she praised that. She understood from her experience the amount of effort that the Home Office made in that particular case.

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[Lord Murray of Blidworth (Con)]

I am not sure that I agree with the noble Lord. There is no requirement that powers should conceivably be expressed on the face of every Bill in such a way that they are trammelled by international obligations. That would be contrary to the dualist system, as my noble and learned friend Lord Wolfson made abundantly clear. I am reluctant to reopen that particular exchange at this juncture, given the time that we have remaining prior to the dinner break.

States take different approaches to their international law obligations. Some states treat international law as part of their domestic law, but the UK, like other countries with similar constitutional arrangements, including many Commonwealth countries, has the dualist approach that we have discussed before. In those states, international law is treated as separate from domestic law and international law is incorporated into domestic law only by decisions of Parliaments through legislation. That is a point we have already discussed. The effect of these amendments would be to make the provisions of all the listed international agreements effectively justiciable in the UK courts. It is legitimate for noble Lords to make the case for incorporation into domestic law of one or more of these international instruments, but that is not the Government’s position, and we should not be using this Bill to secure that outcome.

I hope that, in light of my explanation, the noble and learned Lord will be content to withdraw his Amendment 1.

[Baroness Butler-Sloss (CB)]

I wonder whether the Minister could help me. He said that the Government would apply—I gather—all the conventions that are in Amendment 4. May I suggest that it would be impossible for the Government to apply the United Nations Convention on the Rights of the Child? It is perfectly obvious that the best interests of a child throughout the Bill will not be recognised.

[Lord Murray of Blidworth (Con)]

Clearly, as I have already said, it is the Government’s view that nothing in the Bill requires the UK to breach its international obligations, whether in relation to the UN Convention on the Rights of the Child or any of the other listed international instruments. Of course, the United Kingdom takes compliance with its international obligations very seriously.

Illegal Migration Bill

Baroness Butler-Sloss Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I wonder whether the Minister can help me on this. The “strained decisions” of the courts is a phrase that has been used at least three or four times this evening. As a former judge, I find that difficult to understand. I would like some elucidation as to what is meant by “strained decisions” and what examples there are.

[Lord Murray of Blidworth (Con)]

The context of a strained decision, as the noble and learned Baroness will be aware, are circumstances where there is an ordinary, natural reading of a statute but a judge feels constrained to interpret the words of a statute in a particular way to give effect to a convention right. As the noble and learned Baroness is aware, this is a fairly obvious application of the term, and it is quite usual for such—perhaps more difficult—interpretations to be described as “strained”. I can certainly identify a number of examples, and I will write to the noble and learned Baroness in relation to them.

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[Baroness Suttie (LD)]

My Lords, I will speak to Amendment 12, tabled by the noble Baroness, Lady Ritchie of Downpatrick, to which I have added my name. A very similar amendment was tabled in the House of Commons by my honourable friend Stephen Farry MP. Unfortunately, the noble Baroness, Lady Ritchie, is unable to be present this evening, as she is in Brussels on a delegation, so she has asked me to speak to the amendment in her absence.

As the Minister knows, we had a debate along very similar lines yesterday evening on a regret Motion on the requirement for an electronic travel authorisation and the potential impact on tourism in Northern Ireland. Amendment 12 is primarily a probing amendment that would seek to exempt from Clause 2 of the Bill people crossing the border from the Republic of Ireland to Northern Ireland. I will highlight two particular concerns about Clause 2, as it affects the land border on the island of Ireland.

The first is the enforcement of the provisions contained under Clause 2. The issue of who decides whom to check and on what basis, given that routine immigration checks across the land border on the island of Ireland do not happen, is an area of very grave concern. Maintaining the freedom to travel north-south without restrictions remains a key element of the peace process, and any changes to this could constitute a breach of the Good Friday/Belfast agreement. The Government have confirmed—and it was reconfirmed last night by the Minister—that Irish citizens will be exempt from the need to apply for an ETA when travelling to Northern Ireland. However, there remains a considerable amount of legal ambiguity for residents in the Republic of Ireland who come from a third country whose citizens currently require a visa to enter the UK and therefore Northern Ireland.

During the debate on this issue in the House of Commons, examples were raised about the impact of Clause 2 on individuals legally resident in Ireland who cross the land border from Ireland to Northern Ireland, perhaps to visit friends or to go shopping, but who have not applied for an ETA. During the debate yesterday evening on the introduction of an ETA, the Minister—the noble Lord, Lord Murray—said that,

“those who are legally resident in Ireland may instead, if required by a UK immigration official, present physical evidence that demonstrates their legal residence in Ireland”.

He added that the Home Office would publish guidance in July on what would be considered as acceptable evidence. Therefore, following his statement yesterday, will the Minister tell us what the consultation process will be in advance of publishing this guidance? Will there be an information campaign to ensure that people are aware of these requirements? He will, I hope, be aware of the sensitivities of requiring people to carry official documentation when there is supposed to be unrestricted north-south travel.

During yesterday evening’s debate, the Minister said that

“prosecutions for illegal entry offences will focus on egregious cases and not accidental errors”.—[Official Report, 23/5/23, col. 836.]

Can he say whether it is the Government’s intention to publish guidance on what is likely to be defined as an egregious case? Perhaps most importantly, what assurances can he give that random checks by UK immigration officials will not result in the creation of a border on the island of Ireland by stealth?

My second area of concern is the potential risk of racial profiling resulting from these random checks. Migrant-led organisations such as the North West Migrants Forum have been raising concerns about the impact of visa requirements on the land border on the island of Ireland. They have highlighted the disproportionate impacts on black and minority ethnic, and migrant, people. Clause 2 risks exacerbating these issues and further hardening the border on the island of Ireland for some communities. The Minister will know that, in response to these concerns, Alyson Kilpatrick, the chief commissioner of the Northern Ireland Human Rights Commission, has called for all journeys into Northern Ireland originating from Ireland to be exempt from the ETA provisions in the Bill. Can the Minister say what measures will be put in place to prevent racial profiling as a result of random checks and, in particular, what steps the Home Office will take to ensure proper training of UK immigration staff in monitoring these random checks?

Finally, can the Minister clarify whether non-visa nationals entering Northern Ireland and the UK from the Republic of Ireland without an ETA will impact the validity of deemed leave, as set out under Article 4 of the Immigration (Control of Entry through Republic of Ireland) Order 1972? If he does not know the answer to that one immediately, I will be happy to receive a letter if it could be placed in the Library.

[Baroness Butler-Sloss (CB)]

My Lords, I ought to apologise to the Committee. I failed to say that I was unable to speak at Second Reading; I listened to a great deal of it, but I had a commitment that I could not avoid. I also should have announced earlier that I am co-chair of the All-Party Parliamentary Group on Human Trafficking and Modern Slavery and a vice-chairman of the Human Trafficking Foundation.

I totally support Amendment 6. The retrospective effect is shocking but it has been dealt with by other people, so I will move to two other amendments that I am very anxious to say something about.

There is a mantra about the best interests of children. It has, rightly, been followed throughout the United Kingdom for many years. It originates in the UN Convention on the Rights of the Child, as has already been referred to. It is also incorporated in the Children Act 1989, in which I was very much involved. Consequently, the clauses in the Bill—not just the one with which we are dealing, Clause 2—are utterly shocking in their derogation from the best rights of the child.

It is truly worrying that this is happening. Clause 2 specifically includes, of course, children and the ability to remove them. Part of Clause 2 includes the possibility of children not being included, but it leaves it to the Secretary of State as to when to exercise that discretion. I am extremely concerned about this. It is not only in Clause 2; it arises in other clauses which I will speak about later, so I will not refer to them now.

The other two proposals that I am concerned about are dealt with in Amendments 9 and 11. I very much support Amendment 9, for the obvious reasons of its connection with children. Indeed, what has been proposed by the noble Baronesses, Lady Hamwee and Lady Bakewell, about Clause 2, at page 3 on line 39, is replicated later in an amendment that I have put down.

I am also very concerned about Amendment 11. If one just thinks with a bit of reality about the Bill, one really important thing which is utterly underused is the prosecution of the perpetrators—not the people smugglers but the trafficking smugglers who are bringing in people for wicked purposes. If you are going to require a person who has been abused or exploited by a trafficker to go to Rwanda, and to give evidence from Rwanda, who on earth in their senses will be bothered to give evidence to help a prosecution in England if they are stuck in Rwanda? It is just not feasible.

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[Baroness Butler-Sloss (CB)]

My Lords, there was an issue about adoption of a child who came to this country, or came in the womb of somebody arriving in the country, into a British family. Are they at danger under the Bill?

[Lord Murray of Blidworth (Con)]

Forgive me: as I thought I said, the status of a child born in the UK to a woman who meets the conditions in Clause 2 is that they would not satisfy the conditions in that clause. I realise that there were a number of hypotheticals in the way that that question was written. If I may, I would like to go away and think about them. I will reply by letter in due course, and obviously publicise that letter.

Illegal Migration Bill

Baroness Butler-Sloss Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

I can do no better than say that the impact assessment will be published in due course.

[Baroness Butler-Sloss (CB)]

How do the Government justify not having an impact statement until presumably the whole of this House has completed its dealing with the Bill? It seems to me outrageous. How can the Government justify that?

[Lord Murray of Blidworth (Con)]

As I say, I am afraid the impact assessment will be published in due course.

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[Baroness Meacher (CB)]

My Lords, I shall speak also to Amendment 15. Even without an impact assessment, we know that Clause 2 and subsequent clauses will ensure that anyone coming to this country not through one of the incredibly limited safe routes faces likely detention and removal. Irrespective of the persecution, torture or whatever they have been through in the past, this is what they will face coming to this country under the Bill.

We formulated these two amendments originally in relation to unaccompanied children, but it seemed wrong on reflection that these protections should be limited in that way. Therefore, Amendment 14 now aims to ensure that the Secretary of State will not have the duty to arrange for the removal at the age of 18 of any person who arrived in the UK as a child. Amendment 15 would ensure that if, under Clause 3(2), the Secretary of State made arrangements for the removal of a person from the UK and the person came to the UK as a child, then such removal could take place only if it was in the best interests of the child. Amendment 17 would achieve the same protection for unaccompanied children, and I very much support it.

These amendments and others are vital in addressing the profound concerns of the Refugee and Migrant Children’s Consortium. It points out that the Bill, and in particular Clause 3, are an affront to the refugee convention, the UN Convention on the Rights of the Child and the Children Act 1989. If unamended, the measures in the Bill will have severe consequences for the welfare and physical and mental health of extremely vulnerable children who have fled conflict, persecution and other unimaginable harms. We do not have an impact assessment, the detail or the numbers, but the Bill will affect every child arriving in the UK who has not come by one of the very limited safe routes. These apply to Ukraine and Hong Kong—to put things simply. If one comes from Afghanistan, Sudan or one of those other very high-risk places, there are simply no safe routes for one to take.

As the Bill stands, trafficked children will be locked out of refugee protection. Instead, they will be detained by the Home Office outside the care system in entirely unsuitable, unacceptable accommodation without proper medical or mental health care, and removed at the age of 18. Those children will include a substantial number who are brought here as modern slaves. They have not chosen to come here. They have not come here voluntarily but have been brought against their will. I beg to move.

[Baroness Butler-Sloss (CB)]

My Lords, I have two amendments down, and I very much support Amendments 14, 18 and 27 in particular. “The best interests of the child” has become well known across the United Kingdom. It probably started in the United Nations’ rights of the child. It is to be found, as the noble Baroness, Lady Meacher, said, in the Children Act 1989, and all lawyers who deal with children work with it. It has become a guiding light, even for Governments of all sorts. It really is quite extraordinary that the current Government have gone almost exactly opposite to the rights of the child and, more important than the rights, the best interests of the child.

I have to say that over all the years that I have seen the Conservative Party, with all my family before me as Conservatives, and one a Minister, I cannot believe I have ever seen a situation where children were as disregarded and downgraded as this Government have done in this Bill. I cannot believe it represents what I might call the basic philosophy of a great party that has been in power, this time, since 2010. I am truly sad about it.

I have put down Amendment 16A, which is a probing amendment, as I need to know what the impact of the law is. I believe this came, though not to me, from the Children’s Commissioner for England. The scenario that she had in mind was a mother who was pregnant, who came to this country, the child was born and the mother died. The child was placed in care as a baby—I would be surprised if the Government kept a baby and did not put it to the local authority; at least I would hope so—and the local authority, because there was no family, placed the child for adoption with a British family or a family resident in this country. What happens to that child under this Bill at the age of 18? As far as I understand it, a child adopted by a British family would not automatically have British citizenship or may not have it—I am no expert on immigration—at the age of 18. Is that child, by now a member of a new family in this country, to be removed at 18? That is a legal question to which I do not know the answer, and it is crucial that that answer is given to us before we get to Report.

It is not only the children who are probably adopted at birth. I rather hope the Government are not going to keep young children, because there will be other parents who die and leave a child without a parent in this country, particularly younger children. Are younger children, not 16 or 17 year-olds, going to be kept by the Government in some sort of accommodation? Surely those children would be put into the care of a local authority under the requirements of the Children Act 1989. I would be astonished if they were not taken. If they go into care and they are young, they are very likely to be placed in a foster family. If they are placed in a foster family as a young child, they will grow up going to an English school, like the baby, and living an English life.

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[Lord Murray of Blidworth (Con)]

From my experience, the Children’s Commissioner was involved, certainly while the Bill was passing through the other place, but I will look further into that point on timings. However, the noble Baroness is absolutely right that it is very important that she is engaged with in full in relation to the development of this legislation in so far as my personal view goes. In relation to the point about the child impact assessment, I am afraid that, however much it will disappoint the noble Baroness, I must revert to the usual answer and say that it will be provided in due course—but I of course take away the sentiment that she has evinced.

[Baroness Butler-Sloss (CB)]

In relation to the situation when the child becomes 18, have the Government taken into account the impact on younger children who may have spent many years in this country and are then basically deported?

[Lord Murray of Blidworth (Con)]

The noble and learned Baroness is quite right that it is a very difficult balance that we have to draw. The difficulty is that we cannot allow there to be a loophole which incentivises people smugglers to put young children into boats and expose them to greater danger. There is clearly a balancing act to be performed. There are powers in the Bill, as the noble and learned Baroness will have seen, in relation to exceptional circumstances. However, the principle is that a minor will be removed at the date of their majority. I should add, in relation to a point that was raised in the speeches, that of course children become adults at 18, and that is recognised in international instruments. I appreciate that children develop at different rates, but that is the legal position, as I am sure the noble and learned Baroness will agree.

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[Lord Morrow (DUP)]

My Lords, I shall speak briefly to Amendment 19A in the name of the noble Lord, Lord Hunt, and congratulate him on a very informative and excellent speech. I said at Second Reading that the Bill

“should exclude those who are already subjected to abuse through the heinous crime of modern slavery”

and quoted the former Prime Minister, who had said in the other place:

“It has always been important to separate modern slavery from immigration status”.—[Official Report, Commons, 26/4/23; col. 809.]


I said that the Bill was

“using a sledgehammer to crack a nut”—[Official Report, 10/5/23; col. 1902.]

and that remains my position today.

We know that genuine victims will be penalised through the Bill. There are many amendments tabled, either to mitigate the harm, or to seek much more analysis before Clauses 21 to 28 can come into effect. Those will be debated in a later group, and I hope to speak then too. However, Amendment 19A gets straight to the heart of the matter. Clause 4(1)(c) says that the duties to remove people who have arrived by irregular means should apply regardless of whether a person claims to be a victim of modern slavery. Amendment 19A would remove that presumption.

We should be debating whether modern slavery victims should be within the scope of the Bill because that question speaks to our values and our international obligations. Our long-held values have said that these individuals need safeguarding, not penalising. The UK has been seen as a leading light in how it has responded to human trafficking. This Bill would take us significantly down the league table. Overnight, our world-leading reputation has been tarnished because we have decided that to stop the few, our obligations to the majority should cease.

I am sure the Minister will tell us that the Government recognise that these are exceptional circumstances and for that reason have included a sunset clause. Lest we should be reassured by that, let us consider, first, that the sunset clause can be extended. Secondly, in the meantime, thousands of victims will not get support, and will be detained and removed. One of the Council of Europe’s committees said that the Bill endangered victims. We are endorsing that as acceptable. Thirdly, our Article 4 obligations under the European Convention on Human Rights include

“a legislative and administrative framework to prevent and punish trafficking and to protect victims”.

Article 15 makes it clear there is no derogation from this requirement in a time of emergency. But that is what the Government are arguing—that “exceptional circumstances” allow us to wipe away the protections that are in place across the UK for these exploited individuals.

It is no wonder that there are serious doubts about the UK meeting its international obligations. I urge the Government to heed the warnings and rethink, and I commend the amendment of noble Lord, Lord Hunt, to the Committee.

[Baroness Butler-Sloss (CB)]

My Lords, I am co-chairman of the APPG on Human Trafficking and Modern Slavery and I am the vice-chairman of the Human Trafficking Foundation. I bitterly regret not putting my name to the amendment of the noble Lord, Lord Hunt of Kings Heath, which I was a bit slow to read.

I want to make three points. I entirely agree with what has been said already by noble Lords. First, on the point that the noble Lord, Lord Morrow, makes about the Act and the reputation, as it happens, Frank Field MP—now the noble Lord, Lord Field of Birkenhead—chaired a small group of two MPs and myself who advised Theresa May as Home Secretary on whether there should be a modern slavery Bill. More recently, the noble Lord, Lord Field, another MP and I wrote a report on how the Modern Slavery Act had managed over the years. It has already been said that this Bill drives a coach and horses through the Act. It is tragic that it is the same Conservative Government—a different Prime Minister, but the same Conservative Government—who, having put through one of the greatest and most innovative of Acts of Parliament, which was applauded around the world, now choose to behave like this. Of course, it will very adversely affect our reputation, as the noble Lord, Lord Morrow, has just said. That is really very sad.

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[Baroness Butler-Sloss (CB)]

I cannot remember the exact numbers, but if the noble Lord looks at it the conclusive grounds is the number which matters, and that is extremely high.

[Lord Scriven (LD)]

When the Minister replies to me, can he ensure that a copy goes to the Library, please?

Illegal Migration Bill

Baroness Butler-Sloss Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[Lord Bellamy (Con)]

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

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

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

[Baroness Butler-Sloss (CB)]

I am sorry to trouble the Minister again, but I have been listening to this with great interest and have two questions. First, is the Minister able to say any country outside Europe where it would be safe to send a gay man or indeed woman back? Secondly, if there are any countries, would it be possible for the Government to put those on their website?

[Lord Bellamy (Con)]

It will remain a question of fact in each case and the examples of relevant harm are set out in Clause 38(4), which refers to

“death … persecution … torture … inhuman or degrading treatment or punishment”

and where onward removal would raise a risk of

“real, imminent and foreseeable risk of … harm”.

If that in practice amounts to a situation in which you could not send a gay person back to that country, that would be a decision for the tribunal.

Illegal Migration Bill

Baroness Butler-Sloss Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I will not repeat what has already been said. I agree with most of what has been said in the preceding speeches, particularly the remarks made by my noble friend Lord Kerr about the inadequacy of Schedule 1, and all the examples that have been given, including those given very clearly by my noble friend Lord Alton, of cases which create real dangers of injustice which are plainly contrary to the international conventions to which this country subscribes. Instead, I want to obtain confirmation from the Minister of some short propositions which relate to Clause 6 of the Bill.

Clause 6 provides that the Secretary of State may amend Schedule 1 in certain circumstances. Can the Minister confirm that if a cogent application is made to the Secretary of State to amend Schedule 1 in particular ways and he refuses, that would immediately open the gate for judicial review proceedings? I foresee a menu of 57 opportunities in Schedule 1 for 57 applications for judicial review—perhaps a few fewer—being made by well-known and well-funded NGOs for amendments to be made to that schedule because of circumstances in those countries.

Further, would not the Secretary of State face considerable obstacles if such judicial review applications were made? First, there is the weakness of the standard of proof that is set by the Government for themselves—“if satisfied”, whatever that means. Secondly, in Clause 6(1)(a), which was referred to earlier, the Secretary of State can add a country or territory if satisfied that

“there is in general in that country or territory, or part, no serious risk of persecution”.

Does that not contradict certain other legal provisions which, for example, provide guarantees of safety to a group of people we discussed earlier this week—the cohort of LGBTQ+ people who might be affected?

Thirdly, Clause 6(1)(b) states:

“removal of persons to that country or territory, or part, pursuant to the duty in section 2(1) will not in general contravene the United Kingdom’s obligations”.

Is that not pathetically weak, and contradictory to other legislation? I again take the LGBTQ+ cohort as my example.

If that analysis of Clause 6(1) and Schedule 1 is not entirely coherent, surely it is enough to persuade the Government that they should really reconsider the drafting of Clause 6 and the contents of Schedule 1. If they insist on keeping Schedule 1, it should, from the start of the Bill coming into effect, reflect all the dangers in all countries in which there are dangers for certain groups of people who could not be described as people “in general”. This is ineffective, and I am sure it will put substantial fees into the hands of my learned friends, but that is not what this place should be trying to do.

[Baroness Butler-Sloss (CB)]

My Lords, I support these amendments and the speeches that were just given. I want to make two points only. First, it is extraordinary to me that Schedule 1 shows a list of countries with which this country has no agreement. I cannot understand how one can put into primary legislation a list of countries with which the Government hope to have an agreement, when that is not yet happening.

Secondly, I spoke earlier, at greater length, about the unaccompanied child who comes to the age of 18. Your Lordships have only to think of a child of 10, and we know that some children of 10 have come through. With any luck, a child of 10 will not be kept in Home Office accommodation; he or she is likely to go into the care of a local authority under the Children Acts and will very likely be fostered. It is comparatively easy to be fostered at 10. The child would have spent eight years at an English school, would have grown into speaking English, probably forgetting his or her own language to some extent, and will be settled.

Immediately after the age of 18—subject to the Home Office’s inordinate delays in removing people, but assuming that it achieves something better in the future—he or she can be removed and will go to a country. At the moment, there is only one, unless the child is Albanian, when they would have gone back earlier. That child aged 18, just grown up, will find him or herself in a country the language of which they probably do not speak and he or she will know absolutely nothing. I hope your Lordships agree with me that that, quite simply, is cruel.

[Baroness Hamwee (LD)]

My Lords, I return to the terminology in general. I had tabled amendments in the last group on Monday night, which was a very big group. I could not find a polite way of describing drafting that I regarded as very poor. I resorted to saying that I thought it was

“not a very imaginative way to describe a situation”.

The Minister responding said that the term “in general” is

“not new: it is the test set out”

in legislation of 2002. He continued:

“Including a country in Schedule 1 simply requires the Secretary of State to be satisfied that it is considered generally safe”.


He then said that “the individual”—and noble Lords are absolutely right to remind us that we are talking about individuals, not amorphous cohorts of people—

“would still have the opportunity to challenge their removal”.

Later in the debate, when a similar point came up again, the Minister said:

“This is going to be a matter for the judicial process—through the appeal process, the legal advice and the legal representation that these people have. If they can show serious and irreversible harm, then they will not be sent to these places”.—[Official Report, 5/6/23; cols. 1216-35.]


Having criticised the terminology in general, given that the opportunities to challenge Home Office decisions in 2002 were considerably more than are presented in the Bill, I would like a detailed understanding of the Minister’s explanation of using the processes available.

Illegal Migration Bill

Baroness Butler-Sloss Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Lord Alton of Liverpool (CB)]

My Lords, I have only two questions to put to the Minister. I reinforce the remarks of the noble Lords, Lord Scriven and Lord German.

First, I ask the Minister directly about the issue of capacity. I also want to ask him about the role of the Independent Family Returns Panel. Dr Peter Walsh says that the current detention estate has capacity for about 2,500 individuals, yet we all know that last year 45,000 people arrived on our shores. In addition, there are 160,000 asylum seekers still awaiting decisions. If we take those numbers together, how do they square with the capacity that is planned for the estate? I was also struck by the Taskforce on Victims of Trafficking in Immigration Detention saying:

“We expect that tens of thousands of individuals will be indefinitely detained in immigration detention facilities, with the current already overstretched detention estate being unable to hold anywhere near the numbers anticipated”.


My second question is brief. I am concerned about the disapplication of the duty currently placed on the Secretary of State to consult with the Independent Family Returns Panel in every family returns case, particularly where the family involves children. Has the Minister seen the statement from the UK Committee for UNICEF, which has described this decision for disapplication as “regrettable”? Is that something he might give further thought to?

[Baroness Butler-Sloss (CB)]

My Lords, I want to make two quite separate points. I pick up on what the noble Lord just said; have the Government looked at what is really happening on the ground, the numbers of people currently waiting to be removed—that is a very large number—and the numbers coming in? How on earth are they going to get people away? Where they are going and what is going to happen was set out in much greater detail on an earlier amendment.

What worries me as I have sat listening, today in particular but really throughout the debates on the Bill, is that I do not think the Government have yet put their mind to the problems of numbers and how on earth they are going to get rid of these people, if I may put it rather bluntly.

The second point, which is so much more important, relates to what the noble Lord, Lord Scriven, just said, and I not only support him but admire him enormously for saying it. As I said on another Bill some time ago, I remind the Government that the Home Secretary is not a corporate parent, nor indeed at the moment is the Secretary of State for Education. The concept of the corporate parent is to be found in the Children Act 1989, as a local authority. Currently, the Government are expecting to deal with sometimes quite young children. I think they are concentrating on the 16 and 17-year-olds who are coming through and are not looking at a minority—but probably a relatively substantial minority—of children who are much younger. They have to be looked after. I do not want to repeat what the noble Lord, Lord Scriven, said, but it is crucial that they be looked after. The only corporate parent who can care for them is in fact the local authority where the children are. It is about time the Government started to look at not just the best interests of the children, which is so obvious—it worries me that I keep having to talk about that—but the points that the noble Lord, Lord Scriven, made, which really should strike home.

[The Lord Bishop of Southwark]

My Lords, I support Amendments 61 and 62 in the name of the noble Lord, Lord German, and welcome the opportunity to discuss what rules and regulations His Majesty’s Government will adhere to when selecting a site for the purposes of detention. The right reverend Prelate the Bishop of Durham had intended to speak but is unable to be here for this group of amendments; I am glad to be here in his place. I am grateful to Medical Justice for sharing how existing legislation governs both the nature and operation of detention centres. As it is a detailed policy area, I will focus my time on the context for these amendments while also posing questions to the Minister.

First, as the right reverend Prelate the Bishop of Durham explained at Second Reading, the Bill before us changes the nature and scope of detention considerably. It moves detention away from an administrative process to facilitate someone’s removal to a punitive system of incarceration intended thereby to deter asylum seekers from travelling to the United Kingdom. Deterrence, as we have seen, is a key theme stressed by the Government, albeit no evidence or impact assessment has been adduced in its favour. This shift towards incarceration signals a major transition in policy, but in embarking on this shift in the purpose of detention, the Government leave us with a lack of detail on what rules and guidance will be adhered to when the Secretary of State is selecting a place of detention.

However, the Minister replied on 26 May to the right reverend Prelate the Bishop of Durham’s Written Question that individuals can be detained for immigration purposes only

“in places that are listed in the Immigration (Places of Detention) Direction 2021”.

I know that the right reverend Prelate was grateful for that answer. Furthermore, the Minister stated:

“All Immigration Removal Centres … must operate in compliance with the Detention Centre Rules 2001, this includes any additional sites that are opened as IRCs to increase detention capacity”.


Can the Minister therefore say whether it will remain unlawful for the Government to authorise places of detention outside those specified in the direction?

Secondly, will the Minister explain how the power granted by Clause 10 to the Secretary of State to detain people

“in any place that the Secretary of State considers appropriate”

marries up with the Immigration (Places of Detention) Direction 2021? The Minister may understand my concern that the power to deprive a person of their liberty, and how and where someone is detained, should be constrained by law and not the discretion of a Minister of the Crown, or anyone else.

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

My Lords, at this hour, I do not propose to repeat anything that has been said, so splendidly and excellently, in relation to children, save to say that it is good news that, as the Minister told us, there are no unaccompanied children currently being detained. But that does not mean that they will not turn up next week, and there will certainly be unaccompanied children in the future.

I will say something very briefly about Amendments 76B and 78A on modern slavery from the noble Baroness, Lady Hamwee. I refer to my involvement in various aspects of modern slavery, which I set out earlier. I am very concerned, because it is intended that victims of modern slavery who have got through the first part of “reasonable grounds” ought, under the NRM, to be given the appropriate support. The support provided when they get to that stage of the NRM is generally very good, but none of it, as far as I can see, would be available to those detained by the Home Office under the Bill. That would be a huge deprivation to people who, by definition as having been trafficked, and likely to have been trafficked as well as enslaved, will have already suffered very greatly. This is really an extraordinary and another very cruel move of this Government.

[Baroness Sugg (Con)]

My Lords, I will speak briefly in support of Amendment 59 and its accompanying amendments. We have heard from many tonight about the impact that detention has on children; I do not need to repeat that. We heard on Monday from my noble friend the Minister, making the case against creating loopholes in this legislation. I understand his reasons for that, but, like the group that follows, this amendment is about detention and not the other powers in the Bill. We also heard on Monday from the Minister that we cannot evidence what is yet to happen. Of course we cannot, but we can look at what has happened before in this area. When routine child detention was ended in 2011, there was no proportional increase in children claiming asylum.

We all remember the situation before the current protection was in place, in Yarl’s Wood and elsewhere. I remember the campaign back in 2010, which garnered support from hundreds of parliamentarians and parliamentary candidates across the political and professional spectrum. I remember the pledges of all political parties to end child detention if elected, and I remember the then Prime Minister, David Cameron, delivering on that commitment. There remains widespread cross-party support for not returning to child detention and for maintaining the status quo of the current protections.

At Second Reading, four weeks ago today, my noble friend the Minister said that later in the passage of the Bill the Government would set out the new timescale under which children may be detained. That is very much welcome. It is clear from tonight’s debate that that detail is needed. I hope that this report will be simpler and quicker to produce than the oft-raised impact assessment. Is there any update on when this timescale will come, and can my noble friend confirm that we will see it before Report?

The troubling situation that we are seeing in our immigration and asylum system—the small boats, the backlog in processing, and the lack of broader safe and legal routes—was not caused by the lack of detention of children, and nor will it be solved by reversing our long-standing policy against child detention. I hope that my noble friend the Minister will consider accepting these amendments.

Illegal Migration Bill

Baroness Butler-Sloss Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I have looked through these amendments but not put my name to any of them. I have to say that they—in particular Amendment 8—drive a coach and horses through much of what this Bill stands for. Therefore, I am going to ask my noble friend to make sure he resists them.

This is important because we face some very serious challenges in our society as a result of the rapid growth in our population. I will go over this issue only briefly because we are time-constrained, but I just remind your Lordships that this is already a relatively overcrowded island. Last year, we admitted permanently 600,000; the year before last, we admitted 500,000. Stoke-on-Trent has a population of 250,000, Milton Keynes 288,000 and Derby 259,000. If we are going to house those people properly—and we certainly should —we will have to build four Milton Keynes or four Derbies over just two years. On dwellings, we all know how fiercely fought this is. In 2001, there were 21 million dwellings in this country; there are now 25 million—in 20 years, we have built 4 million dwellings.

It is not just at that very high level. The fact that we are introducing hosepipe bans in the south-east of England now is because the population is rising so fast we are running short of water. When we debated this in Committee, I took a certain amount of incoming from the most reverend Primate the Archbishop of Canterbury. He said:

“everyone who has spoken so far has agreed, that we have to control migration. I do not think there is any argument about that, but does the noble Lord accept that of that 700,000 last year, or whatever the number turns out to be exactly, the Bill will cover only 45,000? The Bill is not about overall immigration”.—[Official Report, 24/5/23; col. 897.]

That is a fair point. However, the figure turned out to be 600,000 and it may well be that that 45,000 is 60,000, in which case it is 10%, not a sufficiently significant number, but the real challenge to us is that everybody thinks it is not their challenge. Everybody thinks it is somebody else’s challenge.

We have heard persuasive, dreadful, heart-rending speeches about the positions that people find themselves in—on behalf of interest groups of various sorts—and no doubt we shall hear them again. However, one group has essentially not been heard during our debates, and that is the 67.3 million people who live in this country, 18% of whom are from minority communities.

When I undertook my polling—which, as I have said to Members of the House, is freely available to anyone—I did not want it to be said that it was going to be old white Brexiteers living in the country, as opposed to young trendy hipsters living in the towns. In response to the question “The UK is overcrowded”, between 60% and 70% of people polled, across all social classes, all regions of the country and all age groups, felt that was the case. Every interest group, including those that are seeking to blunt the effect of the legislation before us, has to play its part in reducing the number. Unless we are seen to be responding to between 60% and 70% of our fellow citizens, uglier and nastier voices will emerge to capture that. We need to be conscious of that.

In my view, the amendments would punch holes in the bucket. How much water would flow out I do not know, but I hope the Minister will think very carefully before allowing the bucket to lose too much water because that way difficulties lie for us, for our communities and for generations ahead.

[Baroness Butler-Sloss (CB)]

My Lords, in Committee I tabled a similar amendment to Amendment 10, so I will not say much now because I said it then. I listened with interest to what the noble Lord has just said, and I recognise that we do not want illegal migration. However, there are broader and more important issues.

Children have rights. A child who is unaccompanied comes to this country, sometimes quite young, and is settled here in local authority care, placed perhaps in a foster family or a residential home. They go to an English school and become fluent in English but then, at the age of 18, are then removed either to Rwanda—the only country with which there is an agreement apart from Albania, and Albanian children are unlikely to be in this group—or to some other country or home that they have fled. Quite simply, to uproot children at 18 is, as I said in Committee, cruel.

[Lord Hacking (Lab)]

My Lords, I am afraid I have dropped my notes.

--- Later in debate ---

Tabled by

[Baroness Butler-Sloss]

10: Clause 3, page 5, line 14, at end insert—
“(6A) An unaccompanied child who reaches the age of 18 must not be removed unless it is in their best interest to do so.”

[Baroness Butler-Sloss (CB)]

With great regret, because I know that I do not have sufficient support from the House, I will not move my amendment.

Amendment 10 not moved.

--- Later in debate ---

[Lord Cormack (Con)]

My Lords, my name is on this amendment and the others that the noble Lord, Lord Hunt of Kings Heath, has tabled. He, like the noble Baroness, Lady Chakrabarti, has given us an admirable example of brevity, and I do not think one needs to repeat what was said in Committee.

As somebody who wrote a biography of William Wilberforce, my parliamentary hero, in 1983 to mark the 150th anniversary of his death and the abolition of slavery, I was particularly proud when it was a Conservative Home Secretary who took through the other place the Modern Slavery Act. I was very glad indeed to be able to give that support. It was in the very best cross-party spirit of your Lordships’ House, and we all of us are genuinely proud—I particularly that it was a Conservative achievement but with support from friends and colleagues in all parts. This Bill before us is going to undermine an international achievement of far-reaching importance. To quote another famous Conservative, this is something up with which we should not put.

[Baroness Butler-Sloss (CB)]

My Lords, I have also put my name to most of these amendments. I agree with every word that the noble Lord, Lord Hunt, has said, and I do not propose to say anything more about them, this being Report. I just want to make two extra points.

As noble Lords know, the noble Lord, Lord Coaker, and I got back from Warsaw today. I was chairing 14 countries discussing how Ukraine could be helped against exploitation and modern slavery. I had to deal with questions from so many other countries among the 14 as to what on earth the United Kingdom was doing in the Illegal Migration Bill. To my shame—and I admit that I was ashamed of what is happening— I could not for one moment support the Bill to those MPs from other countries; because this was a parliamentary meeting, everyone was an MP. It was really very distressing for me to stand up unable to support my own country.

The other point is that not only will victims not leave traffickers—the traffickers will say, with perfect truth, “Either you stay with us or you go to Rwanda. Which is worse? We suggest you stay with us”—but it will have a marked effect on prosecutions. There are already far too few prosecutions, and I think the impact on prosecutions of perpetrators and the extent to which modern slavery will increase over the years as a result of this Bill will be enormous.

[Lord Griffiths of Burry Port (Lab)]

My Lords, I spent the whole of last week in Strasbourg, where there was a very similar response from the 47 nations of the Council of Europe towards what we are doing here, with bewildered questions about it put in debate. I simply add that to what the noble and learned Baroness, Lady Butler-Sloss, said about her experience in Warsaw.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

Order! Secondly, I suggest that the material figures are those in detention. It is a fundamental part of the scheme that people will be detained and removed. We can see from the figures that those in detention have been utilising NRM claims; you can see the increase from the statistics I gave a moment ago. On the noble Lord’s final point, those are all published statistics, and I can confirm that the 65% figure is in paragraph 143 of the impact assessment.

I remind noble Lords that the application of the public order disqualification is firmly grounded in the provisions of the European convention against trafficking, or ECAT. Article 13(3) of ECAT clearly provides that states are not bound to provide a recovery and reflection period on the grounds of public order. It is again worth stressing that these provisions are time-limited. We recognise their exceptional nature, and the Bill expressly provides for Clauses 21 to 24 to cease to apply after two years unless both Houses agree to extend their operation for no more than 12 months at a time.

For the reasons I have set out, we consider that this sunsetting provision is more appropriate than the sunrise provision proposed by the noble Lord, Lord Alton, in his Amendment 113A.

[Baroness Butler-Sloss (CB)]

I wonder whether the Minister could help me on this. On the figure of over 500 days in the NRM, from beginning to end, is that entirely due to Home Office officials not getting through it in a timely way, or is there any other reason why it is taking so long?

[Lord Murray of Blidworth (Con)]

The NRM process requires the gathering of evidence and input from the party, so it is not down entirely to Home Office resourcing issues.

The appointment of the new Independent Anti-Slavery Commissioner is at an advanced stage, and I am sure that once appointed they will want to monitor closely the impact of these provisions.

In relation to my noble friend’s amendments, I repeat the assurance that my right honourable friend the Immigration Minister made in the other place: namely that we will consider additional protections through statutory guidance for those who have experienced exploitation in the United Kingdom. We are continuing to develop such guidance and in doing so will adopt an appropriate balance between protecting victims of modern slavery and delivering the intent of this Bill.

As regards Amendment 103, the noble Lord, Lord Morrow, quite properly raises the issue of how the modern slavery provisions in the Bill sit with the continued operation of the relevant EU directives in Northern Ireland. As I have said in earlier debates in Committee, the provisions in the Bill are compatible with the Windsor Framework. In particular, in the context of this amendment we do not consider that the 2011 anti-trafficking directive falls within the scope of Article 2 of the Windsor Framework.

Amendments 96, 102 and 105, tabled respectively by the noble Lord, Lord Carlile, the noble Baroness, Lady Bryan, and the noble Lord, Lord Morrow, relate to the presumption that it is not necessary for a person to remain in the United Kingdom to co-operate with an investigation. As I outlined to the Committee, remote participation is now the norm in the workplace, and the criminal justice system is no different. It is simply no longer the case that a victim of crime needs to be in face-to-face contact with the police or others to assist with an investigation. In some cases, victims may even feel safer providing virtual or video-recorded evidence. I assure noble Lords that we are working to ensure that the relevant technology, interpreters and intermediaries are available where needed.

We have provided for statutory guidance to support decision-making by caseworkers when determining if there are compelling circumstances why the presumption should be set aside in a particular case, but there is no evidence as to why, in the majority of cases, such co-operation cannot continue by email, messaging and video conferencing. The presumption in Clauses 21(5), 23(5) and 24(5) is therefore perfectly proper and should be retained.

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

My Lords, I will speak in support of the amendment of the noble Lord, Lord German, to which I have added my name, and in strong support of the amendment of the noble Lord, Lord Dubs.

The noble Lord, Lord German, spoke of limbo, which is exactly what we will create here if we do not pass Amendment 15. These people will be detained indefinitely, in the dark about when they will be sent somewhere and in the dark about where they will be sent. That simply is out of keeping with the traditions of the society in which we are proud to live.

The Government will no doubt say that the possibility that a case might be allowed to start in the asylum process would significantly weaken deterrence. That seems to be the principal argument against today’s amendments—even, astonishingly, against the modern slavery amendment a few moments ago. The Government should perhaps read their own impact assessment, in which paragraph 31 says:

“The academic consensus is that there is little to no evidence suggesting changes in a destination country’s policies have an impact on deterring people from leaving their countries of origin or travelling without valid permission, whether in search of refuge or for other reasons. Non-policy drivers of behaviour (for example diaspora, shared language or culture, and family ties) are also known to be strong factors influencing the choice of final destination”.


I believe that that is the case.

The noble Baroness, Lady Kennedy of The Shaws, spoke powerfully in reaction to the noble Lords, Lord Clarke and Lord Howard, about the importance for the rule of law domestically and respect for international law of allowing the due process of hearing an asylum claim to take place. We all know that it needs to be streamlined and to have more resources put into it, but, basically, it is a sane system. The idea of limbo is insane, immoral and illegal, and, as the noble Lord, Lord German, pointed out, would be costly. The case for Amendments 14 and 15 is rock-solid.

[Baroness Butler-Sloss (CB)]

My Lords, I have put my name to the amendment of the noble Lord, Lord Dubs, which I strongly support, as noble Lords can imagine. I agree with everything that was said in support of Amendment 14, and I will add only two short points.

The first is that, over the years that I have been in this House, the Government have spoken again and again about the welfare and best interests of children. In the Bill, it is notable how the best interests and the welfare of children are totally ignored. Secondly, I visited Calais and met a number of young people, under 18, who were determined to come to this country. There was no question of them being pushed by any adults— I never saw an adult in any of the areas of Calais that I visited. They are determined to come, and they have good reasons to have fled their country. I heard harrowing stories of why they wanted to get away. Quite simply, this amendment would put back what they are entitled to and what is in their best interests. It should be supported.

[Baroness Lister of Burtersett (Lab)]

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

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

“not suitable for the inadmissibility processes”.

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

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

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


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

--- Later in debate ---

Moved by

[Baroness Butler-Sloss]

19: Clause 5, page 8, line 23, at end insert “and the Secretary of State is satisfied in relation to the proposed country of removal that it is a safe third State as defined in section 80B of the Nationality, Immigration and Asylum Act 2002.”
Member's explanatory statement
This amendment, and others in the name of Lord Carlile of Berriew, seek to ensure that asylum seekers can only be removed to third countries or territories listed in Schedule 1 if those countries are places where they will be protected from onward refoulement in breach of the Refugee Convention and be able to be recognised as a refugee and receive protection in accordance with the Refugee Convention (if so recognised).

[Baroness Butler-Sloss (CB)]

My Lords, the noble Lord, Lord Carlile, has asked me to speak on his behalf to this series of amendments. My name is on Amendment 33, and I strongly support the noble Lord’s amendments. As we all know, the refugee convention was signed by the British Government. These amendments look at a major concern about safe countries.

It is extraordinary that the Government have put 150 countries in Schedule 1, as I referred to in Committee, given that we know that only two on the list support this. We are told that, even with the additional number that the Minister has told us about, there is no agreement with the majority of countries and that some of the countries with which there are agreements, notably India, have not signed the refugee convention. How can the Government expect to send migrants and refugees to a country that has not signed it? It seems quite extraordinary. The Minister then tells us that it is such a good thing that these countries have joined. It is not only India, but I raise it as an important example.

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

My Lords, I repeat the point. The Government retain discretion to enter into agreements and discretion in relation to the level of detail to be shared.

[Baroness Butler-Sloss (CB)]

I am so sorry to interrupt the Minister again, but could I ask a straightforward question? What is the view of the Government about countries they are referring to that have not joined, or have not signed up to, the refugee convention?

[Lord Stewart of Dirleton (Con)]

The straightforward answer to the noble and learned Baroness’s question is that we are content to treat with countries that have not signed up to the refugee convention.

On Amendments 29 to 36, the Secretary of State may add a country to Schedule 1 by regulations only if satisfied that there is in general in that country or part of it no serious risk of persecution and will not in general contravene the United Kingdom’s obligations under the human rights convention. In so doing, the Secretary of State must have regard to information from any appropriate source, including member states and international organisations. The views expressed by the United Nations High Commissioner for Refugees on a particular country, among other sources of information, will therefore be considered before a country is added to Schedule 1.

In response to the amendments tabled by the noble Baroness, Lady Hamwee, our contention is that, when considering adding a country to the list in Schedule 1, we need to consider the position in the round. We do not live in a perfect world, so it is reasonable to assess a country on the basis that they are generally safe and to consider the possibility of adding to the list only a part of a country.

The noble and learned Lord, Lord Etherton, raised the matter of Rwanda. In relation to protections for LGBTQ+ persons in that country, the constitution of Rwanda includes a broad prohibition on discrimination. Rwanda does not criminalise or discriminate against sexual orientation in law, policy or practice.

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

My Lords, as I stated at the outset, the position is that the provisions for the ability of people to bring applications for serious harm suspensive claims allow for scrutiny of the safety of any location to which a person would be sent.

I was on the point of saying that, although we will not be voting this evening, I none the less urge the noble and learned Lord, Lord Etherton, and other noble Lords not to press their amendments.

[Baroness Butler-Sloss (CB)]

My Lords, I thank everyone who has spoken on this group. In relation to Amendment 19, it is not proposed to test the opinion of the House.

Amendment 19 withdrawn.

Illegal Migration Bill

Baroness Butler-Sloss Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

[Lord Scriven (LD)]

My Lords, Amendment 87 is in my name, and I thank the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Berridge, and the noble Lord, Lord Touhig, for adding their names to it. We on these Benches support all the amendments in this group. With the exception of the amendments in the name of the noble Baroness, Lady Meacher, who wishes to remove Clauses 15 and 16 from the Bill—that would be the ideal solution but is unlikely to win the day—they try to fully understand the relationship between the Home Secretary’s new powers as indicated in Clauses 15 and 16 and the obligations and duties of local authorities to children as laid out in the Children Act 1989.

The statutory scheme for looked-after children has been carefully developed over many decades, with safeguards added in response to learning from systematic failings and research into different aspects of child well-being. Empowering the Home Secretary to radically change that statutory scheme and the provisions around it on the basis of how a child arrives in a local authority area is both radical and untested; it restructures England’s child welfare system.

Where there was total clarity on the interests of the child, the clauses bring ambiguity and confusion. I am confused, as are many other noble Lords, about how the powers given to the Home Secretary in Clauses 15 and 16 are in line with the duties and obligations of local authorities. Unaccompanied children seeking asylum are children in need under the Children Act 1989, and local authorities have specific duties to them and specific powers—for example, under Sections 17 and 47. Under Part 1 of Schedule 2 to the Act, certain activities have to follow.

Section 22C of the Children Act sets out the ways in which local authorities are to accommodate and maintain children. Section 23ZA requires local authorities to regularly visit looked-after children. Sections 25A and 26 place a duty on local authorities to appoint an independent reviewing officer for looked-after children and to make arrangements for independent advocates for them.

The first question I wish to tease out is: when children are removed—either put into the Home Office accommodation initially or removed at the request of the Secretary of State—do they still have looked-after status? If so, how will provision be made for local authorities to carry out the duties they have to looked-after children? The significant question is: what happens when the local authority deems that the Home Office accommodation is not in the best interests of the child, as the statutory scheme suggests? Under this provision of the Bill, can the local authority override the Secretary of State’s request to move a child into certain accommodation and move them into accommodation that is in their best interest? It is a key question that was asked in Committee which the Minister did not answer. The Minister said that he would write to noble Lords on this issue, and I am very pleased that at 12 pm today a letter dated 3 July arrived in our inboxes.

However, that letter creates further confusion and does not answer the following central questions. How will local authorities be able to conduct all their duties under the Children Act 1989? Why does the Secretary of State’s new power lie in the provisions of that Act in terms of where a child shall be put, particularly in terms of the best interests of the child? We really need clarity to be able to understand the interrelationship and how local authorities can carry out their full legal duties under the Children Act 1989 to put the interests of the child first. The Minister was unable to clarify this in Committee and it is important that those issues are now clarified on Report. I beg to move.

[Baroness Butler-Sloss (CB)]

My Lords, I declare that I was President of the Family Division and tried endless care cases involving local authorities. I am extremely concerned about Clauses 15 and 16 and their interrelation with the Children Acts, particularly the Children Act 1989. As the noble Lord, Lord Scriven, has already pointed out, the Secretary of State does not have parental responsibility for children.

I pointed this out to the Minister several times in Committee. So far, and I do not mean to be impolite, I am not sure that either he or—more importantly—the Home Office have put their minds to the implications of parental responsibility. I have not seen a copy of the letter that apparently was sent. It would have been helpful if I had seen it before I came to this House, because since I have been here I am afraid that I have not been looking at my emails.

The local authority is, under the Children Act, the only corporate parent and no one else can be. If the local authority goes to the court and seeks a care order under Section 31 of the Children Act 1989, there will be a court order requiring the local authority to keep the child and place the child in appropriate accommodation. I ask the Minister: has the Home Office has reflected on what Clause 16 is saying—that the Home Secretary can take a child away from local authority accommodation and put that child somewhere else? Is it intended that this Bill is to override the Children Acts and create a new situation where parental responsibility is of no significance if the Home Secretary considers that a child should be dealt with by the Home Office and not a local authority?

This is a very serious legal situation for children. Although there may not be all that number of younger children, there are certainly some. Even a child of 16 is entitled to the care of a local authority. I just wonder whether the Government have thought through the implications of this. I do not believe that this matter will be taken to a vote, which I am rather sad about in a way, because I would like the Government to put their minds to the existing law—which, I have to tell noble Lords, a Conservative Government passed in 1989, and I was one of those who played a part in the legislation. I am extremely sad to see these two clauses.

[Baroness Berridge (Con)]

My Lords, I have added my name to Amendment 87. Like the noble Lord, Lord Scriven, I do not support the other amendments, which would get rid of these clauses entirely.

I had hoped not to have to put my name to that amendment, particularly as I hoped there would be a government amendment because of the clarification by the Family Division of the High Court during Committee on 9 June, in a case brought by Article 39, which was trying to make missing unaccompanied asylum-seeking children wards of court. It is interesting to note in that case that the lead submissions from the Government were not from my noble friend the Minister’s department but from the Department for Education, which holds the responsibility for the Children Act.

I have a simple question to my noble friend the Minister. As a Conservative, I believe it is important that every child has a parent. While the children are accommodated by the Home Office when they initially come into the country, who has parental responsibility? From my reading of the Bill—I am grateful to the noble and learned Baroness, Lady Butler-Sloss—we are changing a fundamental principle in our law and children may not have a parent, without due consideration of the consequences. It might just be for two days, two weeks or four weeks, but it is really important.

I can foresee, even on my cursory glance at this, at least three cracks in that foundation. First, if a child who is being accommodated in these hotels or hostels ends up at A&E and needs an operation but there is no parent to consent to that surgery—so to do that surgery would be an assault—then precious NHS time would be spent contacting the Home Office and not caring for patients.

The second healthcare situation is that children can be detained under the Mental Health Act. That Act gives important powers, duties and safeguards to the statutory nearest relative—and there is a list of those. Again, if a child is under a care order, under the Mental Health Act the corporate parent is the nearest relative. If the child has no parent and is detained in a secure mental health unit, who will be the nearest relative? Again, precious NHS resources will be, in my view, ill-used.

The most worrying crack—which I hope I am wrong about; I remind noble Lords that I am not a criminal lawyer, and I have done my best when looking at this piece of legislation—is that, when child protection functions under Parts 4 and 5 of the Children Act, such as Section 31, are exercised, there is then a very important exemption for local authorities or public authorities from criminal liability under Section 7 of the corporate manslaughter Act 2007. I would be grateful to hear my noble friend the Minister’s view on that statute. It defines senior management. That perhaps includes the board, civil servants in the department, as well as Ministers and, potentially, the Secretary of State. Giving evidence to public inquiries and appearing before Select Committees is commonplace for civil servants; what is not commonplace is being called as a witness to a Crown Court trial for such a prosecution of the corporate body, the Home Office, which is included under Schedule 1 to the corporate manslaughter Act. If there were to be a change of Government next year, it might be the right honourable Member for Pontefract going to the trial, and it would not be good enough for her to say, “We had only been in office for two weeks before the child fell out of the hotel window”.

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[Lord Murray of Blidworth (Con)]

My Lords, Amendment 87 put forward by the noble Lord, Lord Scriven, seeks to ensure that all children covered by the duty in Clause 2 have the protections afforded to children under the Children Act 1989. No one can disagree with the sentiment behind his amendment. However, in a sense, it misses its intended target, as the 1989 Act does not impose obligations, duties or responsibilities on the Secretary of State but rather on local authorities. There is nothing in this Bill that alters those duties or responsibilities, particularly as regards an unaccompanied child—a point well made by my noble friend Lady Berridge.

That said, Section 55 of the Borders, Citizenship and Immigration Act 2009 already requires that the Home Secretary carry out her functions in a way that takes into account the need to safeguard and promote the welfare of children in the United Kingdom, and I can assure noble Lords that this will continue to be the case.

Subsection (3) of the proposed new clause brings me to the provisions in Clauses 15 and 16 which were referred to by the noble Baroness, Lady Meacher. She seeks to remove those clauses; the right reverend Prelate the Bishop of Durham seeks to amend them with Amendments 88A, 89 and 89A.

Clause 15 makes provision for the accommodation of unaccompanied migrant children in scope of this Bill. This clause confers on the Secretary of State a power to provide, or to arrange for the provision of, accommodation and other support to unaccompanied migrant children in England. While the clause contains no time limit on how long any child spends in Home Office accommodation, as I have said previously on a number of occasions, our clear intention is that their stay be a temporary one until they transfer to a local authority for a permanent placement. This is not detained accommodation, and the support that will be provided will be appropriate to the needs of these young people during their short stay.

[Baroness Butler-Sloss (CB)]

The problem is Clause 16, because the Home Office can remove the child from the otherwise permanent care of the local authority. How on earth is what the Minister is saying compatible with Clause 16?

[Lord Murray of Blidworth (Con)]

It is obviously necessary that the Bill contain a power to allow for such a transfer, in order to ensure the appropriate removal of a child on attaining their majority, for example, or for any other purpose that might be necessary to ensure implementation of the scheme. The Government expect local authorities to meet their statutory obligations to unaccompanied children from the date of their arrival in the United Kingdom, and that the Home Office step in only sparingly and temporarily. Indeed, an unaccompanied child in scope of the scheme may enter local authority care without first being accommodated by the Home Office under this power. However, it is important that there be legal certainty about the ability of the Home Office to step in to ensure that an unaccompanied child arriving on the south coast can immediately be accommodated and supported.

As we have just discussed, Clause 16 then makes provision for the transfer of an unaccompanied migrant child from Home Office accommodation to a local authority in England. The clause provides a mechanism for the Secretary of State to decide that a child is to cease residing in Home Office accommodation and to then direct a local authority in England to provide accommodation to the child, under Section 20 of the Children Act, after five working days of the direction being made. As was the subject of the intervention a moment ago, the Secretary of State may also direct a local authority in England to cease accommodating an unaccompanied child and to transfer the child into accommodation provided by the Home Office after five working days of the direction being made. This power is the subject of the right reverend Prelate’s amendment.

I suggest, with respect to the right reverend Prelate, that this amendment is unnecessary given that protections are already in statute in Section 55 of the 2009 Act, which I have already referred to. The Secretary of State is required to have regard to the interests of children as a primary factor in immigration decisions affecting them. Let me be clear: best interests are not the only factor that must be considered; other relevant factors, such as close consideration of individual circumstances, must be taken into account. In making decisions and devising policy guidance under this Bill, the Home Office will continue to apply the Section 55 duty.

We are working through the operational processes relating to unaccompanied children and the circumstances in which we will use this power. This includes engaging with stakeholders to understand the concerns they might have about the power to transfer unaccompanied children into Home Office accommodation. We are working very closely with the Department for Education, as we want to deliver the objectives of the Bill while being mindful of the needs of children and young people. I hope this provides some reassurance to noble Lords.

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

Before the Minister answers, I will add to what the noble Lord, Lord Coaker, said. Throughout our consideration of the Bill, I have been particularly concerned about children. As far as I can remember, there are no more amendments of any significance in relation to children in the final part of Report. All I have said has been without sight of the impact statement. For me and many other noble Lords who are concerned about children, it is quite simply too late.

[Lord Murray of Blidworth (Con)]

I have looked into the history of child rights impact assessments, and they are a rare document. Tomorrow, when the assessment is provided, noble Lords will see an explanation of the background to these documents. There is an element of opportunism about the timing; clearly, these are difficult documents that need to be prepared with care. I say that it will be published tomorrow, so it will be published tomorrow, and at this point I cannot give any more detail as to the precise timing.

Illegal Migration Bill

Baroness Butler-Sloss Excerpts

Report stage
Wednesday 5th July 2023 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I will speak briefly in support of Amendment 156A, although I regret the limited nature of the appeal contemplated by that amendment. I very much welcome Amendment 158A, in the name of the noble and learned Lord, Lord Hope.

As a matter of principle, I am very much in favour of giving individuals the right of appeal although, as I said when I intervened on the right reverend Prelate, I fear that his amendment provides for a more limited right of appeal than I would wish.

A decision on the age of an individual is critical in determining a person’s status under the legislation. I am concerned that, in many instances, the original decision about age will be made in a somewhat perfunctory manner. I imagine that immigration officers may get rather impatient and make rather perfunctory decisions. At the end of the day, age is a matter of evidence and I cannot find any persuasive reason why the original position on age should not be challenged. In my view, the right of appeal should extend to appeals based on the ground that the relevant authority had made a mistake of fact. That is what the noble and learned Lord seeks to achieve in Amendment 158A. However, if I have correctly understood the amendment and its relation to the Bill, the grounds of appeal are limited to those set out in Clause 56(5) of the Bill as it stands. The grounds specified there are essentially judicial review grounds—for example, that there was some procedural unfairness, or the ground of irrationality—and appeals based on fact are expressly excluded. I regard that exclusion as highly regrettable.

To meet some of the anxieties that I fear will be expressed by the Minister regarding my comments and the amendments, I make this point as well: the rights of appeal could be abused, and I would therefore like the burden of establishing the appeal to be on the appellant. It must be for them to satisfy the relevant appellate body that the grounds of appeal are made out. That may in fact be the existing law and practice—it has been such a long time since I practised in that field of law that I simply do not know. If it is not, it should be, and it would meet many of the anxieties likely to be expressed on the government Benches.

[Baroness Butler-Sloss (CB)]

My Lords, I understand very well the child rights impact assessment on this issue. Naturally, the Government are concerned about people’s ability to pretend that they are under age when they are not, but that does not in fact deal with the underlying problem: there are a large number of children from countries outside Europe who mature much more quickly, certainly quicker than children in western Europe.

I remember going on a visit to Safe Passage, which was offering a drop-in centre for young men under 18. A number of those I met, and whom Safe Passage was absolutely satisfied were under 18, had beards or moustaches. If such person is interviewed by the Home Office, will it not immediately assume that a moustache or beard absolutely means that they are over 18? In the case of some of these young people, that will be incorrect.

I also remain very concerned about the issue raised by the noble and learned Lord, Lord Hope, in relation to Clause 5. If the issue is, as I suspect it will be, that they got it wrong, it is not necessarily—or probably not ever—an issue of law but a question of fairness. It is a question of dealing fairly and in the best interests of those who are genuinely under 18.

Reading through the child impact assessment, what depresses me is the suggestion regarding the extent to which the Government are following the principles of the Children Act—which every Government in my lifetime have followed—and looking out for the best interests of children. They are saying it again and again and, quite simply, doing the exact reverse. This is extraordinarily depressing.

[Baroness Neuberger (CB)]

My Lords, most of what I wished to say has been said by others. I pay tribute to my noble and learned friend Lady Butler-Sloss, the noble Viscount and my noble and learned friend Lord Hope for what they have said, and I support the amendment in the name of the right reverend Prelate the Bishop of Durham.

I will simply say this: it is a matter of fairness. In its scrutiny of the Bill, the Joint Committee on Human Rights remained unconvinced by this approach and believes that any penalisation for refusing to undergo some form of age assessment should be challengeable in the courts, which remains not the case at the moment. Removing a young person’s right of appeal against an age assessment which may have been carried out on appearance only, or by any other means, is, as my noble and learned Friend, Lady Butler-Sloss, said, cruel and demeaning.

It is all the more disgraceful if that young person has been tortured or abused and is terrified of being touched by strangers when there is a scientific assessment. It is all the more disturbing given that the so-called scientific methods for age assessment are widely questioned by the scientific community, especially those who have particular expertise, such as the Royal College of Paediatrics and Child Health. I chair two hospitals, as noted in my interests set out in the register. I have never met a doctor or any other health professional who supports these so-called scientific age assessment methods, yet I have met several asylum-seeking young people who have been tortured and abused and are terrified of being touched. If they refuse, they can be penalised and treated as adults. This is a matter of fact. Any young person should have the right of appeal.

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

I am grateful to the Minister for the way he introduced the government amendments to Clause 59, but I am sorry that they were limited in scope. When we had an exchange in Committee and I argued that the revision of the cap should take account of exogenous as well as endogenous factors, he told me that he thought he and I were not far apart. The cap level should not be determined simply by consultation with local authorities. It should take some account of famine, war, massacre, earthquake and natural disasters abroad, which are what tend to encourage the demand for asylum. He told me he did not think we were far apart and agreed to look at it, but I see no amendment. I regret that, but I guess that is where we are.

I support Amendment 163 and I particularly support Amendment 164, proposed by the noble Baroness, Lady Stroud. I congratulate her, the noble Lord, Lord Kirkhope, and the noble Baroness, Lady Helic, on their courage in coming forward with such a sensible amendment.

Clause 60, which the Government have put in the Bill, is welcome, but the report it foresees is a purely descriptive document. It is not prescriptive. Amendment 164 calls for a further report which will be more purposive. The amendment is however quite modest; it does not attempt to point to any particular type of safe and regular route which the Government should explore. It does not suggest we take up the French offer of a processing centre in France, although for the life of me I do not know why we do not. It does not suggest we reconsider what seems to be a systematic reduction now going on in the number of family reunion cases we are allowing. It does not consider —this would fall foul of the ruling of the noble Lord, Lord Kirkhope—that we should change our advice to UNHCR on the number and types of resettlement cases that we will be prepared to take.

About 5,000 people from Iran who came into this country in 2022. It is an astonishing fact that 5,642 arrived by irregular routes and 10 by the regular resettlement route. That seems absurd and can be only on the basis of instructions to keep the flow to a minimum. The amendment does not suggest that we sift new applications for asylum in the same sensible way that the Home Office is now sifting those already in the queue from people who are here, waiting to have their case heard. There is no reason why a similar sift should not be conducted remotely.

If you are a young woman who has demonstrated in Tehran and is now on the run, and wanted by the authorities, there is no remote way in which you can register your wish for sanctuary in this country. We allow remote access to people who want to get into our immigration system, but we do not allow remote access to our asylum system. If you are safe where you are but simply want to live and work here, you may apply remotely on the internet or via diplomatic representation, although the internet is the more likely route. But if your life is at risk, if you are on the run, if you are in Kabul or Khartoum and you are wanted, if you are starving or if your tribe is being massacred, we will not consider your case for asylum in this country, unless you get here directly by some route that does not exist. That seems to me shaming. We cannot put that on our statute book; if we have to do so, let us at least add Amendment 164.

It is hypocrisy to pretend that the aim of the Bill is to stop the small boats. The most obvious way of stopping the small boats is to open new, regular routes. If we can do it for immigrants, by sifting their applications remotely, why can we not do it for asylum seekers? To refuse to do it for those fleeing for their lives—to refuse them even the possibility of applying for sanctuary here—seems a bit immoral, a bit illegal under international law, a bit hypocritical and entirely ineffectual, because it will keep the small boat men in business. I strongly support Amendment 164 in the name of the noble Baroness, Lady Stroud.

[Baroness Butler-Sloss (CB)]

My Lords, I agree with everything that the noble Lord, Lord Kerr, has said and I particularly support the amendment in the name of the noble Baroness, Lady Stroud. During last year and this year, one of the criticisms we have heard in this House of the small boats and those coming across has been that they should have taken safe and legal routes; but as the noble Lord, Lord Kerr, has demonstrated extremely clearly, there are absolutely no safe and legal routes at the moment, unless you go through UNHCR. For people like the woman fleeing Tehran, whose case was given as an example by the noble Lord, Lord Kerr, there is no way she could get here.

If I may respectfully say so, it is hypocritical of the Government to suggest that there are routes that could have been taken to avoid taking the small boats. I deplore the small boats. I do not want to see any more of them. The dangers are appalling and I recognise the problems that the Government have but, as the noble Lord, Lord Kerr, has said, they need to provide safe routes. To suggest that these may be ready by the end of 2024 seems a nonsense; we need them now. If we are to get rid of the boats, we absolutely must have well-known, safe routes from somewhere in Europe.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, we have just had mention made of the young woman from Tehran. I have been in touch with that young woman; in fact, there are more than one of them. Some of your Lordships may have seen the BBC programme last week, which showed the amount of footage that was recorded on cell phones of what happened when the young woman Mahsa Amini was taken into custody because she had her scarf on in an inappropriate way. She ended up in a coma, and then dead. Two young women journalists had got into the hospital and photographed her in that coma, then photographed her family being told that she was dead. Photographs were seen in that programme of her beaten body, her face obviously pulverised by blows. In the days immediately afterwards those two journalists knew that, once they had published their film footage, they would be at risk of arrest—and there was no way that we could get them out. Contact was made, but there was no way.

A few months ago I spoke to the noble Lord, Lord Ahmad, who is always so sympathetic to these positions. Turkey is one of the obvious places that people can flee to, but it is not a safe place for Iranian women; we have seen returns of people to Iran. The question was: if they got to Turkey, could they go into the British embassy, ask for a visa and be given sanctuary and help to get out? The noble Lord had to come back to me and say no, that would not be an acceptable way of dealing with this.

So what is the mechanism for journalists like that, who are in imminent danger? Those two women journalists are now serving six years apiece. They were put on trial, were not allowed to have lawyers and are now serving sentences in jail. That is why I tabled an amendment to the Bill suggesting that there should be emergency visas so that people in imminent danger can do something to get out.

That usually means journalists. I have personal experience of sitting in this country with Anna Politkovskaya, a Russian journalist who had written about Putin and his conduct. She went back to Russia, and three weeks later I saw her body on the stairwell of the building she lived in, with blood pouring down the stairs because she had been shot. These are real events in the lives of people who are being courageous in calling out the abuses of Governments, yet there is no way that we can help them to escape.

It is not only journalists. The lawyer acting for Navalny, the opposition leader who was making a stand against Putin, was immediately arrested. There ought to be ways in which we can provide emergency visas for people to get out. In 2019 the Government announced:

“A new process for emergency resettlement will also be developed, allowing the UK to respond quickly to instances when there is a heightened need for protection”,


and that is what we were calling for. Four years later, that still has not happened.

In 2021, in the months immediately after the military evacuation of Afghanistan, I was directly involved in trying to get judges, particularly women judges, out of that country. We managed to evacuate 103 women judges and their families, but only a small number of them were taken in by Britain. At that stage I delivered a petition to No. 10, signed by tens of parliamentarians, lawyers and human rights experts, calling on Her Majesty’s Government to introduce as a matter of urgency emergency visas for the remaining women judges, women television presenters and women Members of Parliament who had not managed to get out. I did not hear a dicky bird. I did not even get a reply to the petition; I am sure that Mr Johnson took it with him into retirement.

We now have the embarrassment that Canada has created emergency human rights defender visas, as has Ireland. The Czech Republic recently did so too, at the behest of the great project that this country was at the heart of creating, the Media Freedom Coalition. We advised that there should be emergency visas for journalists and were persuading the world to create them. The Czech Republic did so, and it now has a huge number of the journalists who had to flee Russia. Do we have many of them?

I too will support the amendment from the noble Baroness, Lady Stroud. I will not ask for a vote on mine because we are in a bit of a hurry but, if we accept the very sensible amendment to create emergency visas and new routes for people, I call on the Government to include the ones that will be necessary where people’s lives are in imminent danger, as we have seen in a number of conflicts recently.

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

My Lords, I very much support the amendment of the noble Lord, Lord Swire. As has already been said so well by him and by the noble and learned Lord, Lord Garnier, this is an extremely sensible idea. The public, as well as ourselves and the House of Commons, are entitled to know where we stand and what is happening with the numbers.

I share, to some extent, the concerns of the noble and learned Lord, Lord Garnier, about the amendment of the noble Lord, Lord Coaker, purely and simply because I wonder to what extent the National Crime Agency has actually been consulted on what its priorities are. I quite see the importance of giving this priority, and I totally support it, but I would be interested to know, before we make this a part of primary legislation, whether the National Crime Agency, which I happen to know has a large number of different duties and works extremely well in many areas in this country, sees this area as a priority.

[Lord Paddick (LD)]

My Lords, first, I address the amendment in the name of the noble Lord, Lord Swire. He wondered why the amendment had not captured the imagination of the House. Speaking for those of us on these Benches, the Bill is entirely focused on refugees and asylum seekers, who form a very small proportion—a tiny fraction—of the 1.3 million people given leave to remain in the country last year. So while I agree in principle with what the noble Lord says—that we should have a much firmer grip on the number of illegal immigrants in this country—his amendment is not germane to the Bill.

--- Later in debate ---

[Lord Horam (Con)]

This is an important initiative from the most reverend Primate on this subject, for two reasons. First, as the noble Lord, Lord Alton, just said, it is truly an international subject; there are huge issues here that we cannot escape and generations to come will not be able to escape. Secondly, we have to tackle this on a long-term basis, but that does not mean that it has to be set in concrete for 10 years. I am sure the most reverend Primate meant exactly that.

For example, Australia has a framework with which both its Liberal Party and its Labor Party agree. Each year they look at the numbers and agree how many should come in for work reasons, as asylum seekers, for economic reasons or for family reasons. The number is debated in Parliament and it may change. We ought to debate immigration and how much we should have every year, as we debate the Budget. We will disagree. Governments will change and the numbers will change, but within a framework that we all understand and to which we can relate. It would give ordinary people in this country a better feeling about this subject, rather than the resentment and difficulty that we have faced over many years, as we did over Brexit, for example.

The most reverend Primate may be pushing at an open door. He may be aware that, last week in Brussels, the Governments of eight countries—Denmark, Greece and Austria among them—wrote to the European Commission asking the European Union to pursue a new approach, based on the British model. That is one point.

Secondly, alongside those eight countries, another group—including Italy and the Netherlands—has said that it wants to pursue a new model, based on the British approach. No other practical approach has been forthcoming. We think that we have problems, but Italy is talking about the possibility of 400,000 people crossing the Mediterranean, when we are talking about 45,000 last year. As the noble Lord, Lord Alton, was saying, this is a truly international problem and will have only an international conclusion. As that is what is happening in Europe, the most reverend Primate may be pushing at an open door.

It is not surprising that this is happening because, whichever way you look at this issue, you come back to something along the lines that the Government are proposing. I know that some quite serious amendments have been proposed in this House, some of which will go through and some of which will not. None the less, the basic bones of this—safe and legal routes on the one hand, and some means to deter illegal migrants on the other—will be there whatever we try. Over a year ago, the Tony Blair Institute for Global Change said that, whichever way you look at this, those two elements will probably be there in any solution.

I want to raise a separate point with my noble friend the Minister, which I have raised before but not yet had answered. There is a lot of legality surrounding the Government’s proposals, the European Convention on Human Rights and the European Court of Human Rights. We should not get too bogged down in the legalisms, because we need a common-sense approach that deals with the problem as it is today. As I understand it, discussions are going on not only in Europe about adopting the British model for the overall problem but between the UK Government and other Governments about how this would sit against our existing treaties in Europe, in particular the ECHR, and whether elements are incompatible or are largely in agreement. I would like to know whether these discussions are taking place. I am not a lawyer, but it seems sensible, if the legal arrangements allow it, for these sorts of discussions to take place. That seems common sense to me, rather than having ping-pong arrangements in which some people disagree and it goes to the courts. We ought to be able to discuss these issues rationally before they go to the courts.

The most reverend Primate is raising this issue in the right sort of way, but I believe that all this, taken together, means that the Government are right to persevere on their fundamental track while taking account, sympathetically, of the points that have been made.

[Baroness Butler-Sloss (CB)]

My Lords, I declare my interest on the register in relation to human trafficking. If I may respectfully say so, the most reverend Primate has put forward not only a very shrewd but a very wise proposal. It ought to be cross-party; it certainly should not be brushed aside as though it were just part of the Bill, because it is much deeper and goes much further.

I am very glad that proposed subsection (2) includes provisions for tackling human trafficking, because there is a chance that we might retrieve a little of the Modern Slavery Act—something of which this country ought to have been intensely proud, until last year and this year—if we manage to do something sensible, as the most reverend Primate has suggested.

[Lord Waldegrave of North Hill (Con)]

My Lords, I will say a brief word in support of the most reverend Primate and to follow my noble friend Lord Horam. If we are to deal with this problem, it ultimately has to be on the basis of cross-party support, rather like defence. How are we going to do that without somebody first putting forward a framework that will, undoubtedly, be unsatisfactory to the other parties? Then there will be debate and ultimately consensus.

There has to be international action, but that is so difficult. Unless our own country takes a broad-based approach to this problem, we will drive the solutions to the fringes, which will be very dangerous for our politics. It has happened in Italy and Hungary, and is perhaps happening in the United States. It is happening around the world where Governments have failed to base their response broadly enough and therefore keep the extremists at the very fringes, where they always are.

The most reverend Primate offers a way of introducing that kind of debate into our programme. I am the last person to think that making a strategy is the solution to a problem. That is always the long grass—let us have a strategy and it will disappear for ever into committees. I did that myself as a Minister many a time. What he is offering here—and I hope we respond to it in the right spirit—is perhaps the beginning of a way in which we can broaden the basis of agreement about our approach, so that what does not happen, if, say, by some surprise the party opposite comes into power, is that it reverses everything that we have done. What will the electorate think then? They will say that these people cannot be trusted to deal with this problem, which is right in the general public’s mind. If we make it the knockabout of ordinary party politics, we will not have served our people well.

Illegal Migration Bill

Baroness Butler-Sloss Excerpts

Consideration of Commons amendments
Wednesday 12th July 2023 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, with reference to Motion L, I welcome the government amendments, which have the same effect as our original amendments of restoring the status quo ante with regard to pregnant women.

Before my round of thanks, I have one query from the lawyer who has kindly been advising us. He says that his only concern is that they are a separate provision for the new powers in paragraph 16(2C) and proposed new subsection (2A) of Section 62 rather than reapplying the protection of Section 60. The reason that this matters is that for the purposes of the time limit, the period of detention under the old detention powers would not be aggregated with the period of detention under the new detention powers. However, now, in theory, a pregnant woman could be detained for up to seven days under the old detention powers and then for another seven days under the new detention powers. Could the Minister confirm that this is not the intention and that the powers would not be used in this way?

I turn to my thanks. First, I pay tribute to Women for Refugee Women, in particular Gemma Lousley, for all their invaluable work in pressing this amendment, and also to David Neale of Garden Court Chambers for his pro bono legal advice. I thank all noble Lords around the House who have supported the amendments by adding their names, speaking in support, voting in support or deliberately abstaining. I am particularly grateful to those Members—largely women, I think—on the Government Benches who could not bring themselves to support the Government on this. That there was so much support for the amendments on the Government Benches is largely down to the noble Baroness, Lady Sugg, who I think of as a noble friend. She has been tireless, both behind the scenes and on the Floor of the House, as was recognised by the Immigration Minister yesterday.

The preservation of the time limits on the detention of pregnant women in recognition of the likely health impact of the original proposal to remove them represents one small beacon of light in what otherwise continues to be the gloom of a punitive Bill that will do untold harm. The government Motion was described on both sides of the Commons yesterday as a no-brainer. Nevertheless, it would be churlish not to recognise that the Government have listened on this issue at least, and I thank them for doing so.

[Baroness Butler-Sloss (CB)]

My Lords, I rise to speak to Motion N1 in my name, which is just ahead of the Motion in the name of the right reverend Prelate the Bishop of Manchester. This is a rather different point; it relates to a situation where there may be a stand-off between the Home Office and the local authority.

Picture a child who is either being accommodated under Part III of the Children Act or for whom a judge or magistrate has made a care order which the local authority is complying with, and the Home Office, according to Clause 16, wishes the child to be removed in order to send them back to their parents or to some other place. Although it said to use it only occasionally, it does not say in Clause 16 that the local authority should be consulted or, rather more importantly, should actually consent. In particular, if there is a care order, that is an order of the court. As far as I can see, it would be very difficult for the Home Office just to pick the child up and take them away where there is a court order saying that the child must live with the family, or whoever it may be, arranged by the local authority.

Quite simply, what I am seeking is that the Secretary of State should bear in mind all these things and not just consult the local authority but gain its consent to the removal of the child from its care. It is a very simple proposition.

What I would like from the Minister is either an assurance that the Secretary of State will do that, or that he will take it back to the Home Office for the Secretary of State to consider and agree to it. I do not propose to put this issue to the House, but it is very important that the Home Office’s interaction with local authorities under Clause 16 be clarified and that the Home Office recognise the fact that it cannot just remove a child if it is contrary to the Children Act.

[Baroness Sugg (Con)]

My Lords, on the narrow issue of the detention of pregnant women, I thank the Government and the Minister for listening to and considering carefully the arguments made in your Lordships’ House and acting on them. Thanks to the many who made the case, and the government amendment, the existing protection of a 72-hour time limit remains in place. That is a small change, but it will make a big difference to the women in question, and for that I am very grateful.

Illegal Migration Bill

Baroness Butler-Sloss Excerpts

Consideration of Commons amendments
Monday 17th July 2023 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, when the House last debated this issue, the noble Lord, Lord German, stressed the risk to the public purse as thousands are locked up while the search goes on for further Rwandas to send them to. I will not repeat his arguments. The House found them convincing and supported his Motion by a majority of 61; nor need I remind the House that neither my Motion nor the Motion tabled by the noble Lord, Lord German, asks that those locked up for over six months be granted asylum. We ask simply that their cases be heard, as the refugee convention requires. Nothing in the Motion pre-judges the asylum adjudication procedure. It simply rules out the possibility—maybe the probability—of limbo, of extended inadmissibility gagged and incarcerated behind barbed wire.

I will make only three points, two new and one sadly familiar. First, the Minister, in arguing against the Motion moved by the noble Lord, Lord German, advanced only one argument—which he made again tonight. He said that it would simply encourage people to game the system, drawing things out to reach the six-month cut-off date. I suspect that the threat of being sent to Rwanda might be sufficient reason to seek a delay. However, in any case, the Minister’s point is met in the new version of the amendment. With all due respect to him, the change is substantive. The final subsection, proposed new subsection (3C), is new and means that nothing that a detainee does can advance the date on which the Government would have to countenance and begin to consider his application for asylum. Gaming the system would not be possible. If the Government’s concern was real, their objection is really met.

Secondly, the reason that the other place gave tonight for rejecting the amendment tabled by the noble Lord, Lord German, and so many other amendments, was that it is contrary to the purpose of the Bill to prevent and deter unlawful migration. However, willing the end does not and cannot mean willing all and every possible means. Capital punishment might be an effective deterrent, as might tarring and feathering or hanging, drawing and quartering. Willing the end does not absolve Parliament from discriminating among possible means, distinguishing the acceptable from the unacceptable. Sine die incarceration, case unheard, surely falls on the wrong side of the line.

My third and final point is that the underlying issue here is simple and sadly familiar. Our debate has not been just about conventions and commitments. It has been about people, about common humanity. It is about whether the House and the country think that locking people up sine die is a fair and reasonable way to treat those fleeing oppression, famine and war—locking them up and denying them any chance to explain why they seek sanctuary here and what it is that they fear back home. Doing that was in no party’s election manifesto. The House has so far taken the view that it is not what the country should do. I hope that we shall maintain that view. I beg to move.

[Baroness Butler-Sloss (CB)]

My Lords, I shall speak to Motion D1. I remind the House that this issue was raised at an earlier stage, either on Report or in ping-pong, by a Member of the Conservative Benches in this House. I also remind the House that how the law will be applied is not what the Minister says; it is what the law actually states. We are hearing from the Minister that in relation to unaccompanied children it will not be used very much, but that is absolutely not good enough. If the law allows unaccompanied children to be detained for well over 28 days—that is, unless the child gets to the tribunal, and how will the child know that he or she is to apply to the tribunal?—then under this law they could remain there indefinitely.

I have four points to make. First, there is a risk to the welfare of the child of this indefinite detention instead of the present 24-hour maximum—a very considerable increase. The Government talk about child-appropriate detention. I just wonder what that really means.

I am afraid that I have banged on to this House again and again about the Children Acts, but I am particularly concerned about the impact of the Children Acts on Home Office detention if the detention goes beyond just two or three days, because there is no parental responsibility. What happens, as a Conservative Peer said much earlier, if a child suffers a serious medical emergency? There is no one, particularly not in the Home Office, with the right to sign the consent form for a child. They would have to go to the court to get an emergency protection order for the child to be able to receive proper medical attention. It would be quite a good idea if the Home Office remembered that. I said it to it earlier, and so did the Conservative Peer, but it does not seem to have put that in its mind.

Secondly, I worry about the Department for Education. To what extent does it know the implications of the Bill? I get the impression that the members of the DfE in this House do not really have any knowledge of it.

Thirdly, there may be disputes between local authorities and the Home Office over a child being removed from local authority care under the Children Acts and taken into detention. What happens if there is a care order where a judge has ordered that a child should be living in a particular place under the care of a local authority? Is the Home Office really going to move the child where there has been a judicial order over where the child lives?

Fourthly, although I know this is not necessarily popular with many people, Article 5 of the human rights convention talks about detention. In due course I would like to test the opinion of the House.

[The Lord Bishop of Bristol]

My Lords, I shall speak to Motion E1. This Motion, as with Motion D1, concerns vulnerable children being deprived of their freedom—in this case, those accompanied children. I am disappointed that, regardless of the strength of opinion across this Chamber, the Government are still not proposing to set limits on the detention of children in the Bill, whether they are accompanied or unaccompanied. Despite the comments of the Minister about the possibility of fake families earlier in the debate, I wish to press the point.

My amendment, as originally tabled by the right reverend Prelate the Bishop of Manchester last week, seeks to address and bring forward provisions for children within families. It was the Prime Minister himself who stated that it is not the intention of the Bill to detain children. This amendment seeks to go some way towards ensuring that commitment for all children. It would ensure that for families with children, the children could be detained for no longer than 120 hours—five days—or for no longer than seven days, with ministerial approval. It presents a proportionate response to the possibility of unlimited detention of children that is a compromise on what is in the 2014 Act. Given that the Government intend to deport those meeting the conditions of Clause 2 swiftly, It would not hinder that objective.

--- Later in debate ---

Moved by

[Baroness Butler-Sloss]

Leave out from “House” to end and insert “do insist on its disagreement with the Commons in their Amendments 36A and 36B, do not insist on its Amendments 36C and 36D, and do propose Amendments 36E and 36F in lieu of Amendments 36C and 36D—

36E: Clause 10, page 14, leave out lines 41 to 44 and insert—
“(2E) If the person being detained under sub-paragraph (2C) is an unaccompanied child, then the person may not be detained under that sub-paragraph for more than a period of 72 hours or for more than a period of 96 hours where the longer period of detention is authorised personally by a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975).(2EA) Where a person is detained under a provision of this Act and then (without being released) under a provision of the Nationality, Immigration and Asylum Act 2002, or vice versa, the period referred to in sub-paragraph (2E) begins with the point at which the person was first detained under the relevant provisions of either of those Acts.(2EB) The Secretary of State may, by regulations, specify time limits of less than a period of 72 hours or less than 96 hours where the longer period of detention is authorised personally by a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975), that apply in relation to the detention of an unaccompanied child under sub-paragraph (2C).”

36F: Clause 10, page 16, leave out lines 32 to 34 and insert—
“(2C) If the person being detained under subsection (2A) is an unaccompanied child, then the person may not be detained under that subsection for more than a period of 72 hours or for more than a period of 96 hours where the longer period of detention is authorised personally by a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975).(2CA) Where a person is detained under a provision of the Immigration Act 1971 and then (without being released) under a provision of this Act, or vice versa, the period referred to in subsection (2C) begins with the point at which the person was first detained under the relevant provisions of either of those Acts.(2CB) The Secretary of State may, by regulations, specify time limits of less than a period of 72 hours or less than 96 hours where the longer period of detention is authorised personally by a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975), that apply in relation to the detention of an unaccompanied child under subsection (2A).””

[Baroness Butler-Sloss (CB)]

I would like to test the opinion of the House.