Nationality and Borders Bill

Baroness Chakrabarti Excerpts

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

[Lord Stewart of Dirleton (Con)]

If the noble Baroness will bear with me, I will seek to get an answer to that question that I can deliver in the course of the debate—doubtless the Committee will remind me if I have not reverted to the noble Baroness by the time I sit down.

Amendments 160 and 162 do not define “exceptional circumstances” or “serious and ongoing” threat in relation to withholding protection from removal. As such, our view is that they would risk undermining the clarity which this clause seeks to provide and would make the power very difficult to use, meaning that potentially dangerous individuals would continue to receive the generous protections afforded by the NRM.

On Amendment 160A, Clause 62 specifies that disqualification applies when in the interests of national security, but it is right that the Government should also be able to withhold protections from individuals who pose a threat to public order more broadly, including where they have been convicted of serious criminal offences or have made a claim in bad faith, to use the expression that the noble Lord, Lord Alton, referred me to. I say that “bad faith” is appropriate in these circumstances because it is so broad and because it comprises so many aspects.

[Baroness Chakrabarti (Lab)]

I want to intervene briefly on the “good faith” and “bad faith” point, in case it is of assistance to the noble Lord, Lord Alton, and others. Concepts such as “good faith” and bad faith” are commonly used in civil and commercial matters; we understand that. In contracting matters, it is incumbent on parties to act in good faith, subject to the deal they have done with each other. Why I think the Committee is so concerned about what the Minister called the protean nature of the phrase here is that this is human rights protection, and we cannot afford to be protean or vague in the same way that we can when we are talking about how we enter into a contract. This is life and death.

[Lord Stewart of Dirleton (Con)]

The point I was seeking to make by that expression is, I think, the same one that my noble friend Lord Wolfson of Tredegar made earlier, when he spoke about this—it is as familiar to the noble Baroness as a practising barrister as it is to me, and I think it was referred to by the noble Baroness, Lady Hamwee. If we have a list that sets out heads A to E, and then counsel attempts to rely on point F which is not otherwise comprehended, or not specifically enumerated but which may be comprehended within the expression “or any other circumstance”, that always—as my noble friend Lord Wolfson said—places counsel at a disadvantage.

On the threats, or potential threats, and the potential scope for abuse which lie within the power of a person seeking to exploit and make a false application under these circumstances, what we are seeking to do is to identify a phrase or term which is sufficiently wide to encompass all those potential points. Noble Lords in the Committee have identified, under reference to the traffickers and criminals whom it is the intention of the entire Committee to thwart, their cunning, resilience and resourcefulness in finding ways to slip between the cracks of aspects of legislation.

Amendment 169 does not provide a definition of “public order”. I reassure the Committee that we adhere to relevant provisions in our international obligations but it is unnecessary to specify that in legislation, and we are satisfied that the current definition of public order complies with ECAT.

My noble friend Lady McIntosh of Pickering proposes that we replace the “bad faith” provision with one of “improper claims”. That proposal can be addressed in conjunction with Amendment 163, which seeks to remove the bad faith provision entirely. Another reason for the expression “bad faith”, and its breadth, is to avoid inadvertently excluding administrative mistakes made when submitting claims, which may be interpreted as falling under “improper claims”. We believe that “bad faith” is the appropriate language.

In answer to submissions made by the noble Lord, Lord Coaker, under Amendments 169, 161 and 164, which seek to exclude children from this clause, ECAT does not specify an age limit. We deem it important that the United Kingdom maintains the full scope while ensuring that all decisions to withhold the protections of the NRM are balanced against our priority to safeguard children. The proposal set out in these amendments would create, in effect, a two-tiered system that could encourage those looking to misuse the NRM protections to provide falsified information regarding their age. We all sat late enough the other night in relation to the age amendment provisions elsewhere in the Bill for me not to wish to go into that area again, but we are concerned lest the proposals in the amendment provide an opportunity for persons to provide falsified information.

In relation to Amendment 168, the Government are aware that potential and confirmed victims of modern slavery may already have been convicted of serious offences or be involved in terrorism-related activity. I make it clear that neither the additional recovery period nor the public order disqualifications can be taken as being a blanket disqualification. Any decisions relating to disqualifications will be taken on an individual basis, taking into account the individual’s circumstances and vulnerabilities. This includes consideration as to the nature of any criminal exploitation that may have been made of them and the need to safeguard individuals. We think it is right that further details of how to apply this discretionary element should be set out in guidance for decision-makers rather than being placed in the Bill. That will give the Government the flexibility to meet the needs of victims and respond to changing patterns of criminal activity that may seek opportunities to misuse the NRM.

We do not consider that Clause 62 will present a barrier to people who have had convictions and prevent them coming forward, because of that discretionary approach and because there will not be a blanket disqualification on the basis of public order. All of us—the whole Committee, I am sure—want victims of modern slavery to continue to come forward for identification and support, irrespective of their personal circumstances or the circumstances in which they came to be exploited. However, we maintain that it is right that the Government can remove individuals who pose a threat to public order from the protections and support that the NRM affords.

Together with the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Ludford, was concerned lest such victims did not come forward if they had criminal convictions. First responders should still always refer victims into the national referral mechanism, in line with modern slavery statutory guidance, even where the individual has had a previous recovery period or has a criminal conviction. Decision-makers trained in the field will then carefully consider each individual case and take into account specific vulnerabilities and the needs of each individual, again on a case-by-case basis.

The recovery period may be withheld following a reasonable grounds decision, and the rights that flow from a conclusive grounds decision may also be withheld at that stage if relevant disqualifications apply. I emphasise that we will carefully consider each individual case to ensure that people who genuinely need protection and support will receive it. I reiterate that it is right that we should be able to withhold rights from individuals where appropriate—for example, from those who pose a national security risk to the United Kingdom.

I return to the matter raised by the noble Baroness, Lady Ludford, in relation to compatibility with the European Convention on Human Rights. The protections of the NRM will be withheld in accordance with Clause 61 only when so to do would be compliant with our international obligations—