Illegal Migration Bill

Baroness Chakrabarti Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Lord Etherton (CB)]

My Lords, Amendment 69 is in my name. I am very grateful to those who have co-signed it: the noble Lord, Lord Carlile, the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Cashman.

The amendment provides for a general standard or series of standards to be applied—to some extent, picking up some of the more specific points that have been raised by other Members of the Committee. The amendment says:

“The conditions under which persons are detained pursuant to this section must comply with United Nations High Commissioner for Refugees Detention Guidelines”.


This becomes particularly important in the context of this proposed legislation because there is no time limit currently provided for detention. Indeed, earlier today, the Minister, the noble and learned Lord, Lord Bellamy, made great play of the fact that currently Rwanda is the only country in Schedule 1 which has actually signed up to admit people and therefore the rest of the people are not going to be accommodated by way of a removal.

People who are not suitable to go to Rwanda, which, according to the FCDO’s travel guidelines, would certainly include LGBT people, would be subject to indefinite detention until some other arrangement—if and when, if ever—with a truly safe place for that group was arrived at.

The UNHCR’s refugee Detention Guidelines currently set out, in guideline 8, some 18 minimum conditions of detention. They range from general propositions on treating asylum seekers with dignity to conditions around medical treatment; the ability of persons resident in detention to make contact; physical exercise; for children, education and vocational training; standards of food; and so forth. We certainly know that, on the ground at the moment, those standards are not being adhered to in the accommodation currently being occupied by those who seek asylum.

The time has come—particularly in view of the possibility of detention without any limit whatever; although that issue is going to be dealt with in a later group, I might add that it is in itself contrary to guideline 6 of the UNHCR’s refugee Detention Guidelines —when the Government must commit themselves to the minimum recognised standards that apply to asylum seekers. As others have said, we are not just dealing with numbers—number 1,231, for example. Each of these cases is a human being deserving of dignity and proper treatment.

Those are the minimum standards set down in guideline 8. I would like to know whether it is the Government’s proposal that they should adhere to these minimum standards.

[Baroness Chakrabarti (Lab)]

My Lords, I rise in support of the noble and learned Lord, Lord Etherton, whose Amendment 69 I have signed. It would require detention conditions to comply with those set out in guidelines by the United Nations High Commissioner for Refugees. I need not repeat the arguments that the Committee well understands about the United Kingdom’s historic role in the refugee convention and other aspects of the post-war human rights settlement.

Like many noble Lords in this Committee, I have been in these debates for some time, so I understand that there is some dispute on the Government Benches about the UNHCR. The UNHCR says something; they say, “So what? It is just another woke NGO”. Well, it is not. The UNHCR has a special role in the convention. It is a UN body and it was given a special role in the supervision of the refugee convention.

I simply refer noble Lords to Article 35 of the convention, headed “Co-operation of the national authorities with the United Nations”. We were an architect of the convention and a key signatory to it; I am sure that every Member in this Committee wants to abide by it. Article 35 states:

“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention”.


This body was given from the beginning the very special role of supervising the convention. That is fair enough, is it not? It cannot just be that every nation gets to interpret the convention in its own way; that would not exactly be global governance.

[Lord Wolfson of Tredegar (Con)]

Is that not precisely what the Vienna convention on the interpretation of treaties provides for: that each nation interprets it? States have to relate to and deal with the body to which the noble Baroness refers, but that is separate to the legal question of what the convention actually means. These are two distinct legal questions, are they not?

[Baroness Chakrabarti (Lab)]

Well done. Article 35 continues:

“In order to enable the Office of the High Commissioner or any other agency of the United Nations which may succeed it, to make reports to the competent organs of the United Nations, the Contracting States undertake to provide them in the appropriate form with information”.


The bottom line is that the UNHCR is not just any other body, think tank, NGO or pressure group. It is a specific organ of the United Nations that was commissioned right at the beginning, when this convention was drafted, to have a special role in its supervision. That is why I support the noble and learned Lord, Lord Etherton, in suggesting as a bare minimum that our detention provisions ought to comply with guidelines—they are only guidelines—set out by the UNHCR. We can have these lovely little Oxford Union interventions from Members opposite, but the bottom line is that if we do not comply—

[Lord Wolfson of Tredegar (Con)]

I am sorry, but this is not an Oxford Union intervention. There is a clear distinction between an obligation to co-operate with a body in the implementation of the convention and that body having a role in the interpretation of the convention. They are different legal concepts and, with great respect, the noble Baroness knows that; it is quite wrong to elide one with the other. “Interpretation” does not appear in Article 35 and is deliberately excluded.

[Baroness Chakrabarti (Lab)]

I am very grateful, obviously, to the noble Lord for his intervention. I repeat:

“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees”.


This was the body given special status in the drafting of the very precious convention that was drafted with key instigation by the wartime generation in this country for reasons that I need not repeat.

If we do not comply with guidance from the UNHCR in relation to the detention of asylum seekers and refugees, who will? For that reason alone, I am very glad to support the noble and learned Lord, Lord Etherton.

[Baroness Brinton (LD)]

My Lords, Amendment 70A in this group is in my name and also signed by my noble friend Lord German. It is focused on the protection of unaccompanied migrant children and child victims of modern slavery. Picking up on the theme from the noble Baroness, Lady Chakrabarti, I want to make a brief reference to the United Nations Convention on the Rights of the Child. Article 22 on refugee children says if a child is seeking refuge or has refugee status Governments must provide them with appropriate protection and assistance to help them enjoy all the rights in the convention.

There is consistent medical evidence that immigration detention is damaging the mental health of those who are detained. This Bill now forces children to be detained beyond the very short period which has been about acceptable before, although it was good that during the coalition years we stopped children being held in detention.

People seeking asylum have a very high prevalence of pre-existing vulnerabilities, including serious mental health conditions and histories of being trafficked, tortured and suffering sexual and gender-based violence. This puts them at particular risk of being further harmed in their time in detention.

The health implications of this Bill to detain people anyway without adherence to particular standards was highlighted by the events at Manston. As the right reverend Prelate the Bishop of Southwark has mentioned, it had a capacity of 1,600 but last autumn it was overcrowded, with the number of people detained nearing 4,000 following a decision by the Home Secretary not to send people on to hotels. People were beyond the 24-hour time limit without clear lawful basis for detention in holding rooms or five days in holding facilities.

My noble friend Lord German referred to the recent reinspection of Manston, but it is worthy of note that Charlie Taylor said there seemed to be some improvements while it was “fairly empty” but that he

“was not assured that if numbers increase … the site will be able to cope much better”

than last autumn, which is why I wish to persevere with my amendment. Conditions at Manston deteriorated very quickly and are likely to have amounted to inhuman and degrading treatment in violation of Article 3 of the ECHR, including overcrowded living conditions, unclean and unhygienic facilities, inadequate food provisions—some days without sufficient food or drinking water—lack of adequate medical care and spread of infectious diseases.

--- Later in debate ---

[Baroness Ludford (LD)]

If the noble Baroness, Lady Chakrabarti, does not want to take that opportunity, I would quite like to. The noble Lord makes the point that Article 35 of the refugee convention does not have the term “interpretation”, but it does say, as the noble Baroness quoted:

“The Contracting States undertake to co-operate with the Office of the … High Commissioner … in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.”


I suggest that that is not a million miles from assisting in the common interpretation of the convention.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Baroness and the noble Lord. Acoustics are not always with me. I literally read from Article 35 and so did not use “interpret”. I used words such as “co-operate”. I think that I might have said “supervise”—I believe there is a supervisory jurisdiction. At this late hour, I really do not think that this should be a great beef between lawyers. I just say that there is a duty to co-operate with the UNHCR, and it has a special position as an organ of the UN that we set up. That is why I agree with the noble and learned Lord, Lord Etherton, that our detention policies ought to have serious regard to the guidelines from the UNHCR.

[Lord Wolfson of Tredegar (Con)]

I may have misheard, but I thought I heard “interpret”. I think that other noble Lords did as well. The Official Report will make it clear, no doubt. With great respect to the noble Baroness, in legal terms there is a million miles between a duty to co-operate and giving that other party the right to interpret. There is a huge difference between this country as a state saying that the treaty means whatever the UNHCR says it means and, on the other hand, saying that we will co-operate with the UNHCR to enable it to fulfil its obligations under the treaty but we as a state arrogate and retain the right to arrogate to ourselves in good faith and bona fide what that treaty actually means. It may sound like one is drawing fine distinctions but there is a very clear distinction, as lawyers will tell you, between the right to interpret a document, whether that be a contract or a treaty, and co-operation in the implementation of whatever that contract or treaty means.

--- Later in debate ---

Your Lordships may be wondering why I am so worried about the use of force. The use of force in law enforcement could potentially include handcuffing, the use of a baton, the use of dogs, the use of irritant spray, body restraints, spit hoods, Tasers, and aiming firearms. The Government have a duty to safeguard the most vulnerable in society, so I hope they carefully listen to our concerns today.

[Baroness Chakrabarti (Lab)]

Good morning, my Lords. I hope all Members of the Committee—it is a large group; larger than usual, for which I give credit to the Committee and to Members opposite in particular—will remember 8 June 2023. I will always remember where I was this morning, and I hope that other noble Lords will too, because this was the morning when we began debating whether detention and force are appropriate for pregnant women and small children.

I am very privileged to follow the noble Baroness, Lady Gohir, with her various well-put medical and other reasons why it is not a good idea to use force against pregnant women. It seems that this is now necessary in the context of debating amendments to the Bill. It would seem that there is the edge of depravity, and then there is the abyss. In the last group, we talked about detention. We now take it to its further conclusion, because in the end, a consequence of detention will sometimes be force. It is as well that we confront that, and confront it in the case of both children and, in this example, pregnant women.

Whatever our views about the basic policy here, I rather agree with the noble Baronesses in the previous group and with the speeches we have just heard that it would be appropriate for the Government to think again about this group of vulnerable people in particular, considering all the reasons that were given. Surely, whatever is said about deterrents and so on, there can be some concession to humanity, please, in relation to children and pregnant women. That will not hurt the signalling and the deterrents and so on. We cannot go on like this—and I do not just mean that we cannot go on at 12.20 am. When we were younger, hey, we used to go on all night, so we can go on all night in here; this is how we get our kicks in the Committee. However, we cannot go on degrading ourselves and our values by suggesting that there is no difference between a child or a pregnant woman and an adult, and that everybody is illegal. We need to make some restraints, just for decency, for our own sake.