Illegal Migration Bill

Baroness Hamwee Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Lord Sahota (Lab)]

My Lords, I will be very brief in speaking to the amendments in the names of my noble friend Lady Chakrabarti, the noble Lord, Lord Paddick, and the noble Baroness, Lady Ludford.

As the son of an immigrant, it always makes me uneasy when that word is spoken in vain. I am the son of an immigrant who was a member of the Sikh community which came to the UK in the 1950s, 1960s and 1970s and helped to build this country by working their guts out in the foundries of the West Midlands. Most of the foundry workers were Sikhs.

The Sikh population in the UK is now about 550,000 people. It is one of the most successful communities in the UK, with the lowest number of benefit claimants, the lowest unemployment rate and high rates of home ownership. Only 4% of the Sikh community lives in social rented housing, compared with 18% of other groups. It has the highest proportion of people in high-skill occupations at 39%, compared with 30% among other groups. Only 2% of the Sikh elderly are in care homes compared with a much higher number in other communities. A recent BBC study found that Sikhs are the most generous group when it comes to giving to charities. Over 60,000 meals—langar—are served every week on the streets of the UK by Sikhs. And yet—this is my first point—in a recent faith report for the Government by Colin Bloom, the impression given was that Sikhs are terrorists and extremists. I do not accept that characterisation of the Sikh community.

As for the Bill, I wish the Prime Minister had shredded it along with the other European papers. Whichever way you look at it, the Bill stinks to high heaven. It does not speak to our country’s traditional moral values, our international obligations on human rights, the UN convention on refugees, the European convention against human trafficking, other international treaties and so on and so forth. All these have been mentioned by other noble Lords. There is not a decent principle in the Bill that does not break human rights. I fully agree with these amendments.

We shredded our position and power in the world by pulling out of the European Union. Now, we are shredding our moral obligation in the world with this Bill—and what for? For a few votes in so-called “red wall” areas. Our Prime Minister and Home Secretary should think again before pursuing the Bill. As the son and daughter of immigrants, they should know how much immigrants have given to this country. I support these amendments.

[Baroness Hamwee (LD)]

My Lords, I am glad that the noble Lord, Lord Kerr, brought his copy of Hansard from Second Reading with him. My recollection of the Minister’s explanation regarding Section 19(1)(b) was that the matter had not been tested by the courts. That sticks in my mind because I thought it was curious, since the Government are rather critical of people running off to the courts for interpretations of the law.

I will say quickly, because I want to put it on the record, that I subscribe to the view that no asylum seeker can be illegal and to the comments about international law which have been made. I am afraid that I am going to retreat from the big picture and Second Reading to Amendment 1—possibly unconventionally. I am grateful to the noble and learned Lord for tabling it, because it made me start thinking about the definitions of a lot of other terms used in Clause 1. The term he has singled out—I agree with him that it needs clarity—raises a lot of issues. There is a sort of endless loop of argument about compliance by the individual and compliance by the Government in their assessment of what they are doing.

In my mind, that is not the only phrase in Clause 1(1) that needs to be clearer. The same sentence uses the wording,

“and in particular migration by unsafe and illegal routes”.

That raises a lot of issues, does it not? Unsafe, of course, is a matter of judgment. As for illegal routes, in legislative terms, how does a route become illegal? What does “and in particular” signify in this context? Does the reference to unsafe and illegal routes exclude other routes? I really do not know. It is good prose, but not in this context.

Another phrase which bothers me at a technical and, I have to say, a political and a practical level is

“in breach of immigration control”.

Superficially, one understands what that means, but I do not know and was unable to find whether this is a technical phrase and so legally clear within domestic law. Immigration control is breached by a contravention of legislation, I would think, at a given time. That is clear enough. However, in the area we are discussing, the Immigration Rules—which we know are constantly changing and which come from Ministers and do not touch the sides for parliamentary scrutiny—are part of immigration control. So, I would be interested to know what that means in this context. It seems to me that one could portray this as delegation to Ministers by another mechanism. It is not clear—this is the political point, I suppose—so it is not a deterrent. I think it is inappropriate and gives more power to the Executive, which the Constitution Committee reports are given

“an unusual degree of power”

by the Bill.

I have added my name to Amendment 84. The noble Lord, Lord Alton, is not in his place; I did not expect to find that the debate on this would come today, and possibly neither did he. I am grateful to the right reverend Prelate for highlighting compliance with the anti-trafficking conventions. I agree with the noble Baroness, Lady Chakrabarti, that we need to come together with a single list that we can gather around.

I do not want to pre-empt debates on the substantive issues regarding trafficking and slavery—I say that without intending to suggest that the conventions and directives are not significant; they are—but will simply say that I expect the term “world-leading” to be used quite a lot with reference to the Modern Slavery Act when we get to that part of the Bill. The international nature of trafficking means that the UK has to consider it internationally and comply with conventions and directives—which brings us directly back to the point that many other noble Lords have made.

[Lord Sandhurst (Con)]

My Lords, I will speak to Amendments 2, 4, 84 and 148. I shall not speak to Amendments 1, 3 and 5. As for those later amendments, I will wait to hear what the Minister has to say about their meaning and effect on the Bill.

I turn to Amendment 2. Let me begin by way of introduction by explaining what I understand to be the effect of Clause 1(5) of the Bill, which will disapply Section 3 of the Human Rights Act 1998. Importantly, it does not mean that the convention ceases to apply to matters covered by the Bill or to acts by Ministers and officials; they will still be covered by it. Section 3 provides that

“primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”.

Illegal Migration Bill

Baroness Hamwee Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

I heap plaudits on the shoulders of the noble Lord, Lord Carlile of Berriew. That was worthy of a legal lecture. I hope the noble Lord, Lord Wolfson, caught his plane, but that was a common-sense lesson in the law spoken with a great deal of humility. I will not call it a lecture because it was too humble and too articulate for that. I associate myself with all those remarks. I have signed only some of the amendments, but I am happy to endorse all the amendments that are against retrospection in the Bill. Our position on retrospection comes from common decency, common sense and common law before we get anywhere near ECHR obligations and other international obligations. Do not change the rules after the game has begun.

I notice that the noble Lord, Lord Hodgson of Astley Abbotts, is back in his place. He is a great one for the Clapham omnibus. I think this idea of changing the rules half way through the game is something that anyone on the Clapham omnibus or any lay person anywhere in our country would completely understand, and that is why all the amendments tabled by the noble Lord, Lord Carlile, are so important. It is profoundly unfair to say to people who are already in this country, who have already come to claim asylum, whether they will eventually succeed in their claims or not, should be subject to this new, punitive, retrospective regime.

The noble Lord, Lord Carlile, is clear and articulate, but he is also forensic because there are some extreme situations in which retrospection is permissible and even I would support retrospection. The famous one is marital rape. We know that once upon a time in our country it was not considered rape for a man to rape his wife. That position was changed in the courts in relation to a particular case. This had been brewing for some time. People thought the law was out of step with contemporary views on equal treatment of women and what is acceptable even within marriage. That was changed in a single case in which a man was successfully prosecuted for raping his wife. He took his claim all the way to the European Court of Human Rights in Strasbourg, and the court said no, this rape is so profoundly contrary to our international accepted norms that in this case we will accept that retrospection did not offend the common decency principle that you should not punish people retrospectively.

That is the kind of case we are talking about, in which it is acceptable to do that—not in this context. These are very vulnerable, desperate people. Whatever the views of noble Lords in this Committee about the acceptability of this regime, and we will disagree about that, in my view and that of many Members, as we have heard today, applying this to people who came here in good faith, and in many cases in desperation, on the understanding that the refugee convention would be applied in one way, is punitive and discriminatory, contrary to the convention. Retrospection adds insult to injury. I hope the Committee will not accept it and will instead support all the amendments that deal with retrospection in the name of the noble Lord, Lord Carlile of Berriew.

[Baroness Hamwee (LD)]

My Lords, I am glad to have been able to add my name to the noble Lord’s amendments. I am grateful to him for introducing them so clearly. I am conscious that my name is among those of noted advocates in different contexts.

We are already in an Alice in Wonderland—although I am not sure it is really a wonderland—world, where we are told that asylum seekers will know enough about UK restrictions and provisions to be deterred from trying to get here. I do not recognise that proposition. Added to that is the idea that people who are already here should have known what is in the Bill even before most MPs had an opportunity to pick up a copy of it.

The noble Lord referred to legislation coming into effect when it gets Royal Assent. Yes, of course it does, but very often—almost invariably—in a limited way. Some clauses come into effect, usually the jurisdiction and that type of thing, but many of the provisions and most of the legislation that we deal with have to wait for secondary legislation: that is, the provisions that implement what is in the primary legislation.

I absolutely agree with what has been said about certainty, clarity, predictability and so on. This Bill displays a casual attitude, which goes against not only legal principles but, as I think has been said, common decency. If I were to ask the Minister what is so compelling about the Bill that it should be an exception to all this, I have no doubt that I would be told, “We’ve got to stop the boats”.

As the noble Lord just said, the Nationality and Borders Bill—now Act—had the same policy objective, yet the channel crossings kept on rising and they have gone on rising. If I wanted evidence that retrospectivity had an effect in practical terms, I would have expected to find that they had come down in number since 7 March—but they have not.

I have two amendments in this group; my noble friend Lady Bakewell of Hardington Mandeville also has her name to the first of these, Amendment 9, which proposes to leave out Clause 2(7). Subsection (7) provides that

“limited leave to enter or remain given”

to an unaccompanied child “is to be disregarded”. It says, in effect that, for the purposes of Clause 3(1), we are to disregard what has already happened. It is another bit of retrospectivity. What use is the leave that is referred to in Clause 2(7)? To disregard it is unprincipled. Such leave should be taken into account in determining whether a child has leave to enter or remain; the Government have given it.

I will raise a point that the noble Baroness, Lady Finlay, the noble and learned Baroness, Lady Butler-Sloss, and myself, were discussing during the dinner break—it justifies our having had a dinner break, I think—and that is the question of adoption. I have not seen the comment made by the Children’s Commissioner, which no doubt the noble Baroness, Lady Finlay, will talk about, but I understand it suggests that, in the case of a child who has been adopted, and who falls within the provisions of the Bill as currently set out, that adoption in some way could be undone, despite the fact that the child has become a member of a British family.

I would have thought that the four conditions would not have been met, but we must be absolutely clear about this. If someone with the credentials of the Children’s Commissioner suggests that there is an issue here, we must have an absolutely clear statement from the Dispatch Box that that is not so and, preferably, an amendment from the Government making it clear that it is not so.

Illegal Migration Bill

Baroness Hamwee Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My question is even more simple: where is the impact assessment? I think the purpose of impact assessments is to inform the legislative decision. We hear that there will be an impact assessment and it will be produced shortly, but it seems unlikely to be produced while this Bill is being considered in this House. I think that is rather insulting, particularly as the Government rest their intellectual case on the deterrent effect. They say that the numbers will go down as word gets about of how people are to be treated, what “inadmissibility” means and how it is to be applied.

I am strongly against that on legal grounds—I think we should honour our international commitments—and humanitarian grounds, but it is impossible just to consider this argument on its merits if we cannot see the assumptions underlying the Government’s judgment of the impact. The questions from the noble Lord, Lord Coaker, are all extremely apposite and I look forward to the answers to them, but it seems to me that in relation to the deterrent effect, the impact assessment—wherever it is, whenever we will see it—will have to consider why people leave their home country and seek asylum far away. Why are they coming here? Will they be deterred by talk of us getting more brutal? We are going to get more brutal if we pass this Bill, but we are not going to get half as brutal as the conditions of the countries from which they are fleeing—75% of those seeking asylum in this country are found by the processes to have a well-founded fear of death or persecution back home.

Talk of pull factors is all nonsense: it is all about push factors. They are fleeing from horrors, from famine, from massacre, from murder and from war. It is difficult to see the deterrent factor as likely to be to be large, given the scale of the factors that are bringing about the flow. The impact assessment may prove me wrong. Certainly, the Government should, if they have the courage of their convictions, produce the evidence and the assumptions that underlie these convictions, and they should do it before we finish considering the Bill.

[Baroness Hamwee (LD)]

My Lords, does the noble Lord agree that one of the underlying provisions that we should know about is the safe and legal routes that we are told will deal with any number of people? Situations change so fast. I am not sure we had quite started the Bill when Sudan flared up as it did. There is an awful lot we need to know in order to know how the Bill will work.

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[Lord Hannay of Chiswick (CB)]

My Lords, I support the amendments in this group because they are at the heart of whether or not we are acting in conformity with our obligations under the UN Convention on the Rights of the Child, which I believe we are not. The noble Baroness, Lady Lister, has most helpfully brought to our attention the view of the committee set up to watch over the application by all 192 members of the UN to the Convention on the Rights of the Child. Its view is negative.

I am well aware that the United Nations does not have any enforcement powers in this matter—sadly, perhaps—but that does not mean that the British Government, which is usually a member of the UN in good standing and good faith, can simply ignore the views of the committee that was set up to watch over this legislation. To do so will have quite serious consequences in a much wider field, because there are plenty of members of the United Nations who shelter behind the lack of enforceability of the UN, whether it is in the Security Council or elsewhere, to do things that we, quite rightly, condemn outright, whether in Ukraine, the Taiwan Strait or wherever. The cost to this country of simply riding roughshod over our obligations under the UN Convention on the Rights of the Child is therefore quite serious.

The Minister will no doubt remind us that the UN Convention on the Rights of the Child is not incorporated into our domestic law. That is correct, but it was ratified by this country. How do we know that it was ratified, and how do we know that it covers all the provisions which this legislation is at variance with? Because we made two or three rather small, explicit reservations from the UN Convention on the Rights of the Child, none of which is relevant to the present matters we are debating—they relate to enrolment in the Armed Forces, education and so on. We accepted all the rest, and we ratified it and told the United Nations that we were going to apply all the rest. Now, we are going back on that.

I hope the Minister will not simply tell us that his opinion and that of the Home Office is that we are not infringing any of these obligations. I do not honestly think that that cuts any ice at all. I would be delighted if he would take, one by one, the articles cited by the noble Baroness, Lady Lister, and my noble friend Lord Kerr of Kinlochard, and explain why he has a different interpretation of those provisions. I say that more in hope than expectation, because the Minister does not seem to like answering specific questions of that sort. However, I hope on this occasion he will overcome his reluctance to do that and will address these problems. The UN Convention on the Rights of the Child is a serious matter. It is bringing better conditions for children worldwide. It is being used as an instrument to strike down all sorts of discrimination, and here we are building up new sorts.

[Baroness Hamwee (LD)]

My Lords, I have two amendments in this group. I, and we on these Benches, agree with pretty much everything that has been said, and with the specific amendments, including the first, introduced very succinctly by the noble Baroness, Lady Meacher.

I shall go back almost to the beginning of the debate. I do not come from a Conservative family—rather far from it, in fact; they were good News Chronicle-reading Liberals from Manchester—but they would have agreed with everything that the noble and learned Baroness said. I wonder whether, like me, she finds it particularly offensive that when the issue of the best interests of the child are raised, what the Government so often say is, “Of course we observe the best interests of the child. Of course we always take the best interests into account”, even to the extent, I may say, of sometimes saying that in immigration law best interests are paramount, which sadly they are not—not quite.

Amendment 18, also about unaccompanied children, would address the position—this seems to be a bit of a minnow compared with some of the points that have been made—when the Secretary of State has not been able to make arrangements with her, as I am bound to say, or his self-imposed duty to remove someone within six months, or, in the case of a child who arrives unaccompanied, within six months after the child has ceased to be unaccompanied. The Government must face up to what should happen if the Secretary of State sets herself a duty and then does not comply with it. This amendment would provide for regulations to except these cohorts. Though Parliament obviously could not amend the regulations, at least it would provide for the position.

--- Later in debate ---

Thirdly, there is the naivety of the Government in suggesting that people could assist the prosecutions by doing it from another country. We do not have enough prosecutions. The main way to deal with modern slavery is to prosecute the traffickers—those abroad who come here or can be found, and those who are in this country. There has been some success—but a limited success because you have to have witnesses to give the evidence. Even today there is not enough evidence given by witnesses, who are slow to come forward. I have to ask the Government: do they really think that if somebody is sent to another country against their will, having been already traumatised by being a victim of slavery, they are going to help the Government who deported them to deal with their traffickers? It seems extremely unlikely. On those three points, I strongly support what is going on now.

[Baroness Hamwee (LD)]

My Lords, whenever there is a reference to the ouster of the courts and tribunals in the context of this Bill, I think how ironic it is that we heard from the Government that they cannot give a certificate of compatibility with the Human Rights Act because it has not been tested by the courts.

Here again, it seems to me that we are conflating modern slavery and trafficking with immigration. That is misconceived and it is immoral. My name is on a number of the amendments of the noble Lord, Lord Hunt—not all of them, but this was due to the nature of the process, not any disregard of those amendments. An awful lot of organisations were continuing to suggest amendments pretty much as we walked into the Chamber.

The concern about this is very widespread. The amendments in this group are going in the same direction. Everyone who has spoken shares a concern about victims being scapegoated and their positions not understood. I have so much admiration for people such as the Filipino—I assume a domestic servant—the young man mentioned by the noble Lord, Lord Carlile. What people manage to do with their lives after the experiences they have gone through leaves me almost lost for words and feeling huge responsibility to try to do my best for them, even if it is not a very good best. We heard earlier today about the arrangements that the Government have for returns. The very fact that the Government have recently been negotiating with Moldova, Bulgaria and I do not know who else, about co-operation to prevent trafficking—I think it is trafficking and not just, if you can use the word “just”, smuggling—indicates the Government’s clear awareness that this is all happening. But negotiation is not a result.

The Government must not ignore that asylum seekers smuggled in are very vulnerable to exploitation as a result of the Government’s own policies. I may, at some other time, if I can and if she will allow me, quote the very apt and succinct description by the noble and learned Baroness, “escape does not mean exit”. People have said this at greater lengths during proceedings on this Bill, but that really does sum it up.

Not for the first time, those of us who have added our names to the amendment in the name of the noble Lord, Lord Dubs, seem to be a little band who work together. I will not repeat everything that has been said, but the Secretary of State sets rules for other people—in this case, very vulnerable people—so there must be consequences if the Secretary of State does not observe or fails the rules she has set.

The British Red Cross and others have been very clear about the effect of limbo on physical and mental health. It is not surprising that people now disappear into the black economy, exploitation and destitution. They must feel that they are being treated as if they are not human. Limbo should not be indefinite. I do not know how the provisions fit with the Home Office’s own guidance that the inadmissibility process, which currently does apply in some circumstances, must not create a lengthy limbo where delaying means the claimant cannot advance his or her protection claim.

Clause 4(3) deals with claims which are declared inadmissible. I ask again: what data will be published about claims which have been declared to be inadmissible? Can the Minister confirm that the Home Office will publish details, particularly the numbers, of declarations of inadmissibility? I cannot see that they will be regarded as claims which are refused because they never get to the stage of being considered. It is essential that we know how this Bill is working—if that is the right way to describe how the Bill, and maybe an Act, will proceed.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I signed the intention to oppose the Question that Clause 4 stand part of the Bill.

I do not often say anything good about this Government but they do, at times, think outside the box. They really do think up novel practices and novel moves in all sorts of areas. I admire massively the people who have gone through this Bill and put amendments forward. Sometimes I have time to do that myself on Bills. This particular clause is so bad—how can we improve it? There are two particularly dangerous proposals, which we have already heard. The first is that the courts will not be able to pause or prevent a deportation, even where that deportation will be clearly unlawful. Secondly, the Government can, by diktat, declare a person’s human rights as inadmissible. Where does that come from? Who thought that up? It is just incredibly creative. As it is novel practice, it is also dangerous. A precedent is being set that the Government can simply rule that some people do not have any human rights and that a Government can act unlawfully without any intervention from the courts. Human rights are for everyone—which is something this Government seem to forget—or they are not human rights. The courts must be allowed to protect those rights against the Government.

We have to stop this illegal Bill. I see no option but to start voting out chunks of it. If we can possibly intervene at the end, we should vote all of it down.

Illegal Migration Bill

Baroness Hamwee Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

Moved by

[Baroness Hamwee]

30: Clause 5, page 7, line 20, leave out paragraph (b)
Member's explanatory statement
This amendment removes a subjective power of the Secretary of State to determine that there are “exceptional circumstances” to prevent a removal.

[Baroness Hamwee (LD)]

My Lords, I also have various other amendments in this group. I feel I should speak very slowly in the hope that those who have the other amendments in this group arrive in time to introduce them.

Amendment 30 relates to Clause 5, which is one of the removal provisions. A number of noble and learned Lords, all learned in the sense that one generally understands it—I can see one of them in her place—have put a good deal of work into the other amendments in this group. I do not want to pre-empt what they and my noble friend Lord Paddick will say, so I will leave that support unspoken.

Clause 5(4)(b) places the Secretary of State above the law and above the courts, because the first hurdle to making a protection or a human rights claim is that

“the Secretary of State considers there are exceptional circumstances”

preventing removal to a particular country. This amendment is intended to probe what is meant by “exceptional circumstances”. I hope the Minister can expand on this. We have examples in subsection (5) which are about particular countries and not individuals. I suspect that they may include situations which are the subject of many other amendments in this group, and if so we should spell that out and not make it a matter of discretion. I am questioning the Secretary of State’s discretion, as I understand it—reasoned discretion, one hopes—or consideration that there are exceptional circumstances which prevent removal to a particular country.

It was only when I was preparing for today that I paused on the word “prevent”. Does it really mean preventing removal, which to my mind conjures up pictures of protestors preventing take-off of a plane carrying a particular individual? Or does it mean that removal is inappropriate or risky because of the reception—in the broadest sense—at the other end; or that there are circumstances which mean that removal would be unsafe? If it is about treatment at the other end, I am not sure that “prevent” is the right term.

I very much support the amendments—which we will hear about in a moment— extending the list of countries and parts of countries which are dangerous to return people to.

My amendments are directed at, and opposing, the notion that an individual can be safe in a part of a country if he is not safe in another part of the same country. Not every country is in a tidy unity, but where there are laws, they tend to apply overall. Where there are prejudices in a country, those who may be a threat to an individual will be free to travel between different parts of the country. Those are Amendments 52A to 52D, Amendment 52G and Amendment 53A.

Amendments 52B and 52D challenge the proposition in Clause 6(1) of removal if “in general” there is no serious risk of persecution or that removal will not “in general” contravene obligations under the human rights convention. What is meant by “in general”? I do not understand the term in this context. It is not fair to call it a lazy term, because I appreciate the vast amount of work that goes into drafting any Bill—however much one dislikes it—but it is not a very imaginative way to describe a situation. If you cannot give an example, you should not be trying to use generalised terminology. This seems to be another demonstration of the Government clutching at anything they can to deny obligations to asylum seekers. I beg to move Amendment 30.

[Lord Carlile of Berriew (CB)]

My Lords, I apologise for my slightly late arrival in the first minute of this debate. I rise because I am the signatory of a number of amendments tabled by my noble and learned friend Lord Etherton, and because I have some amendments in my own name: Amendments 33A, 34 and 35.

The aim of all these amendments is to ensure that something happens which I feel should not cause any differences with the Government. I think it may be a matter of interpretation or a matter of adding a few words to the Bill. Principally, it relates to the treatment in third countries of people who fall within the LGBTQ group. Section 80B of the Nationality, Immigration and Asylum Act 2002 provides that a state is a safe third state in relation to a claimant if

“the claimant’s life and liberty are not threatened in that State by reason of their race, religion, nationality, membership of a particular social group or political opinion”.

I focus on the words

“member of a particular social group”.

I am sure the noble and learned Lord, Lord Bellamy, will acknowledge that the definition of a “particular social group” has been to the courts. Indeed, government guidance has been issued which accepts that being a member of the LGBTQ+ community, subject to the facts being established—obviously, there is a consideration of the facts in every case—entitles that person to protection from Section 80B, as I quoted. The purpose of these amendments, therefore, is to ensure that people who are seeking asylum because they are a member of that social group—or another definable social group—do not lose the full protection of the law by reason of the content of Schedule 1 to this Bill, and the provisions of Clause 5 in particular.

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[Lord Bellamy (Con)]

My Lords, at this stage I do not think I can elaborate beyond the answers I have already given. 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.

[Baroness Hamwee (LD)]

My Lords, I thank the Minister for the care with which he has responded to these amendments. I do not know whether I am right, and I do not want to embarrass him, but I sensed a slight feeling of discomfort with the issues we are having to address. I applaud him for that.

It seems to me that noble Lords have been both practical and principled in this debate. I agree with the analysis about half an hour ago by the noble Baroness, Lady Chakrabarti, of the position, but the practicality has been by testing the reality of different circumstances. It was the noble Lord, Lord Coaker, who said that, when faced with the situation of somebody one knows well being in this precarious position, it all looks very different. I agree; it is rather similar to feelings about people who come from other cultures. We are suspicious of them—“But not So-and-so—no, she is fine”.

On Amendment 30, I will read the report of what the Minister has said. I was not challenging most of subsection (4). It was simply the discretion, and I take what has been said about the Secretary of State having to act reasonably and so on. Subsection (5), however, says that “exceptional circumstances include”. That, to me, raises questions about what might not be included on the face of the Bill.

The Minister is quite right that I was trying to read “prevent” as someone being put at risk, and I think the Bill should say so because a person is prevented from being removed only if, in his individual case, he falls within the exceptions. That is not the natural understanding of the term. I have to say that I remain very concerned about the issue of a part of a country. A conflict in one part of a country can spread very fast, and can the risk to an individual—if he is persona non grata in one part of the country, that can become known in another part of the country very easily—and we are talking about individuals.

I am still a bit confused about “in general”. I understand that the lists we have are an amalgam of previous lists. The Minister defends the position—I think I am right in saying—by referring to procedures that can be used to challenge a decision. We are going to get to some more of this later in the Bill, but noble Lords have already shown their concern about the very narrow circumstances in which challenges—if I can use the term broadly—can be made.

A couple of things have come up in the Minister’s response that have made me think again about these. I would have mentioned some in any event, but I sure that noble Lords will understand that I am, at this moment, speaking a little bit slowly for reasons of time. If there is to be a negotiation about a home country and whether to have a negotiation with that country, does that actually raise the risk of drawing the individual to the attention of the authorities in that country and putting that person in greater jeopardy than he may have been?

The notion of acceptance by the receiving country has also been raised. I do not know whether the Minister can answer this tonight; if he can take a couple of minutes to do so, it would be helpful. If the UK and other countries are going to say, “Will you accept this individual?”, does that not, again, put that individual in jeopardy, because the reason for his having sought asylum in the UK will become known? We are in Committee, so the Minister is free to reply if he can help at this point.

[Lord Bellamy (Con)]

My Lords, I expect that I am being asked to play a sort of night watchman role in continuing the batting until stumps are drawn. As far as I know, it is not the case that the Government intend to engage in negotiations in relation to particular individuals. The Government’s general policy is to engage in discussions with particular countries about reciprocal arrangements and migration partnerships. There are various reports of other countries that are currently engaged in discussions.

Subject to correction—I am sure my noble friend Lord Murray will put me right—I think it is very likely to be the case that a lot of what we have discussed tonight in relation to Ghana, Nigeria and Uganda is simply not going to arise. I know that the noble Lord, Lord Cashman, and others are sceptical about that and it may be that the Government need to provide some further reassurance to satisfy noble Lords. Perhaps the noble Baroness will forgive me for noticing the time.

[Baroness Hamwee (LD)]

I am grateful to the Minister. That has raised further issues in my mind about what information may be given—not necessarily about an individual—to a receiving country, whether the questions may be asked and how the UK responds.

I think stumps probably can be drawn, though it is not in my gift to say so. I beg leave to withdraw Amendment 30.

Amendment 30 withdrawn.

Illegal Migration Bill

Baroness Hamwee Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[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.

--- Later in debate ---

Moved by

[Baroness Hamwee]

55: Clause 7, page 9, line 36, at end insert “and,
(c) the Secretary of State has published guidance regarding what criteria will be used to determine the order in which individuals who the Secretary of State is required by section 2(1) to make arrangements for removal will be removed from the United Kingdom.”Member’s explanatory statement
This is a probing amendment regarding the process the Home Secretary will put in place to determine the order in which individuals will be removed from the UK once the duty to remove is in force.

[Baroness Hamwee (LD)]

My Lords, Clause 7 relates to further provisions about removal. I have three amendments in this group. Amendment 55—I apologise for the grammatical error in it—would require the Secretary of State to publish guidance about the criteria for the order in which individuals are to be removed. It is not likely to be a tidy process and, as we have been debating for two and a half days now, an awful lot of people will be involved.

Therefore, as much transparency as possible about the process is required. For instance, will decisions be taken on the basis of how long individuals have been detained compared with others, where they have been detained, the receiving country, a mixture of all of these, or none of them? On Monday we heard from the noble Lord, Lord Carlile of Berriew, about a woman who had been waiting for 10 years—sadly, not that unusual a situation. The people who will be subject to these provisions are left not knowing what is going to happen to them. The lack of certainty is, to my mind, a cruelty among many others. To know not just that the decision is unfavourable but when its implications are going to be felt in the form of removal, as distinct from detention, will be very relevant.

Amendment 55A probes the process of notifying the Secretary of State under Clause 7(3)(b) regarding a suspensive claim, that the individual P

“does not intend to make a suspensive claim”

and proposes that that can be made through an immigration officer. I assume that that is the case. After all, the Secretary of State does not deal personally with every single application. However, with regard to the reference to notification being given orally, I want to raise the problem in my mind that it is too easy to be misrepresented when you make an oral representation, or simply not heard. I hesitated about tabling an amendment here because, on the other hand, I do not want to disadvantage an asylum seeker by requiring notification in writing if that is a difficult thing to do. I assume that P’s representative can give the notification on P’s behalf, but I would be glad of that assurance and also to know who that representative can be. Would it have to be a legal representative or could it be somebody who was providing support through one of the many organisations that work in this sector?

Amendment 57A would leave out the term “or indicated” in Clause 7(8). That provides for directions to transport officers about removal in a ship or whatever other vehicle

“specified or indicated in the direction”.

What does “indicated” mean? Does it mean “a ship” or “a train”? I suppose the latter would be Eurostar or perhaps a train between Northern Ireland and the Irish Republic—I do not know. It seems—again referring back to the previous debate—that “indicated” is perhaps a rather loose term. I may be wrong—I will probably be told that it is used in other legislation—but I would be glad to hear from the Minister what we should understand by it. I beg to move Amendment 55.

[Lord German (LD)]

My Lords, I have Amendment 57 in this group, and also the clause stand part debate. I will address my Amendment 57 first, but there are serious matters in the clause as a whole which I will come back to in a moment.

Amendment 57 addresses the far-reaching and perhaps unrealistic legal obligations being placed on private actors and companies to effect removal. This includes the captain of a ship, the pilot of an aircraft, the train manager or the train driver being required to enforce removal of an individual by enforcing detention on the ship, aircraft or train, if required, to prevent disembarking before removal has been fulfilled—and also of course to do it the other way round, as these people are mandated to ensure that the person is taken by those means of transport to the country to which they are being deported.

Two things arise from this part of the clause. One is that it gives inordinate powers to the Secretary of State to requisition not just ships, boats, aeroplanes and whatever else but the services of those who run those means of transport to detain and restrain those who are being transported. I will address in a moment the criminalisation of those people in making them subject to this sort of regulation.

The Explanatory Memorandum says that the Government will procure those services by privately chartering planes or ships or whatever but, clearly, this part of the clause, as drafted, gives the power to the Government to requisition those services. The Explanatory Memorandum also says that the Government can requisition scheduled services—scheduled flights to Kigali, perhaps. There are no direct flights from the United Kingdom to Kigali, by the way, and the flights are all operated by airlines based mostly in the European Union. So the Secretary of State can intervene in scheduled flights and require that they take the asylum seeker to a destination.

The other problem is that clearly, there has been no consultation on this matter with those who are now going to be required by the Government to execute this role on their behalf. To emphasise that, I will read to the Committee the views of the UK Chamber of Shipping, the people whose vessels are likely to be requisitioned:

“We are greatly concerned about these clauses becoming law which could require the ship’s master and crew to detain passengers, something which they are not trained to do, at the direction of the Government. The clauses also seem to allow the Secretary of State to set the period for which a ship’s master is required to detain a person on board a vessel—this could potentially lead to a situation where a ship’s crew is stuck in port for an indeterminate amount of time having received an instruction to detain individuals who are then awaiting the outcome of various legal processes to determine their rights. We are concerned that this puts seafarers at much greater risk from positions of conflict and potential harm”.


That is from the chamber of shipping, which obviously has not been consulted. We have also received a letter from the RMT that makes the same points.

The issue here now is: why has this power been taken? The situation is very similar to that in the Nationality and Borders Bill, which, Members of the Committee will remember, would also have criminalised seafarers who perform humanitarian rescues of persons in distress at sea and bring them to the UK, but those provisions were dropped from that Bill because these people should not be criminalised in this manner.

My first question to the Minister is: if it was determined and agreed by Parliament that this sort of clause was not required for the Nationality and Borders Bill, what is different now? How are the circumstances different? Is it because there are many people—airline pilots or crew, perhaps—who have not been willing to deport people in the manner the Government propose? Secondly, is it because the Government are not intending to provide anyone to accompany these people on their journey but are expecting them to be dealt with entirely by the crews of existing means of transport?

It is beyond my ability to understand why this law is now being put in place when it was previously deleted from an Act that had some of the same intentions. It seems to me that this is an unworkable section of the Bill, particularly in respect of people’s understanding of how they are to be expected to carry out jobs for which they have received no training, in which they have no experience and which they may find morally repugnant.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I do not have the answer to that at my fingertips but, if I may, I will revert to the noble Lord with it. I suspect that the availability of legal advice will be drawn to the attention of individuals at the earliest possible time, but I will check that point and come back to the noble Lord.

In conclusion, the noble Lord, Lord Coaker, made some valid points on which I will further reflect. I hope I have at least gone some way to respond to the probing amendment of the noble Baroness, Lady Hamwee. On that basis, I ask whether she is content to withdraw her Amendment 55.

[Baroness Hamwee (LD)]

My Lords, it is Committee stage and, as the whole Committee knows, that is what I will do.

On this amendment, the Minister said, possibly twice, that things will be done “as soon as practicable”, but we know that not very much is practicable. It sounds like a parallel, idealised—well, it is not ideal to me but it may be in the Government’s mind—universe where all is possible. On the previous group, my noble friend referred to being somewhere within the wizardry of Oz. I do not know who is which character, and perhaps it would be inappropriate to speculate. However, the point about uncertainty in the minds of the individuals concerned is serious, which is why I made it earlier.

I do not think the Minister answered my question on Amendment 55A about whether notification can be given by a representative of the individual and whether that has to be a legal representative or could be a support worker from an organisation in the sector. Is he able to respond to that now?

[Lord German (LD)]

I also asked a question to which the Minister did not reply, about a person escaping from South Sudan via Kenya. Kenya would be treated as an unsafe country because it is in Schedule 1. Could the Minister respond to that when he has a moment?

[Lord Murray of Blidworth (Con)]

I apologise for not answering the noble Baroness’s question. Yes, is the answer; representatives could be provided in that way.

To reply to the hypothetical situation that the noble Lord referred to about someone from South Sudan travelling via Kenya, it would depend on the facts of the specific case and whether the conditions were met. It is perhaps not directly relevant to the debate we are having on this amendment, but I am happy to consider that hypothetical in more detail and write to the noble Lord.

[Baroness Hamwee (LD)]

To be absolutely clear, is the Minister saying that notification can be given via any representative and that they do not have to be qualified in a particular way?

[Lord Murray of Blidworth (Con)]

That is certainly my understanding. If the situation is any different, I will let the noble Baroness know.

[Baroness Hamwee (LD)]

I think that is quite important, as it matters how these things work in practice. Having said that, and as I indicated, I beg leave to withdraw the amendment.

Amendment 55 withdrawn.

Illegal Migration Bill

Baroness Hamwee Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

Debate on Amendment 57C resumed.

[Baroness Hamwee (LD)]

My Lords, I had got as far as “My L—” when I was interrupted. I am sorry, I do not mean “interrupted”: I mean when we heard the Motion that the House be resumed. It was not going to be a major speech—it still is not, although I could have spent the last half-hour working on it.

I thank the noble Baroness, Lady Lister, who dealt with the issues very comprehensively, and the Refugee Council, which has been so helpful in briefing us. I simply observe the irony of our debating state support in the context of state-inflicted detention.

[Lord German (LD)]

I apologise to the Committee for speaking twice, but of course this is Committee so I can do it again.

To reiterate some of the issues that the noble Baroness, Lady Lister of Burtersett, raised, this is an issue which you need to understand if you are to propose and manage this policy and move it further forward. “What happens next?” is not just a big question, it is of crucial importance to people and people’s lives. I will not repeat my statements about assessments, which are well made and obviously made all the time, but we have heard an exposition of this issue, which needs to be resolved. We need answers to those questions.

--- Later in debate ---

Moved by

[Baroness Hamwee]

58: After Clause 8, insert the following new Clause—
“Repeal of asylum seeker accommodation regulationsThe Houses in Multiple Occupation (Asylum-Seeker Accommodation) (England) Regulations 2023 are repealed on the day on which this Act is passed.”Member's explanatory statement
This amendment provides for the repeal of the Houses in Multiple Occupation (Asylum-Seeker Accommodation) Regulations 2023.

[Baroness Hamwee (LD)]

My Lords, this amendment relates to a statutory instrument that has recently been approved.

I appreciate that the issues of the use of houses in multiple occupation for asylum seekers and the changes in the standards applying to such houses for that purpose may not have crossed the inboxes of most noble Lords; they certainly had not crossed mine until I was told that the SI changing the regulations was scheduled and found myself scheduled to speak on it. Like many such instruments, it was considered in Grand Committee and then went through the House very quickly. The purpose of the instrument is to make provision to exempt accommodation provided by the Home Office for asylum seekers from licensing requirements; that sounds quite straightforward.

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

I beg the noble Lord’s pardon; I meant to answer that question and sought specific information from the Bill team on it. The regulations apply only to England and not to Wales, Northern Ireland or Scotland.

Finally, I invite the noble Baroness, Lady Hamwee, to withdraw her amendment.

[Baroness Hamwee (LD)]

My Lords, I am not going to say very much. Many Members are waiting to consider the large number of amendments we are scheduled to get through tonight—whether we will or not, we will see.

I thank the noble and learned Lord for his responses to the shedload of questions which came from this side. I was surprised that he started by saying that the regulations are intended to ameliorate conditions for asylum seekers, because it seems to everyone involved that it is about numbers and not better conditions. He has given assurances about engagement with local authorities, but it was the Local Government Association which particularly asked to be reassured about engagement, so this remains a live issue. He said that the lump sum of up to, I think, £3,500 would be paid in the circumstances he mentioned. I had understood from briefing that that was only for the pilot period of four months. Could he let me know after today if that is correct?

Finally, the noble and learned Lord mentioned Migrant Help. There have been a lot of tales over the last few months of people in hotels who have asked for some help from the contract providers who run the hotels or from other staff, and been told, “Oh, go and ask Migrant Help”. I do not think that it is quite the smooth process that was just suggested. However, I beg leave to withdraw the amendment.

Amendment 58 withdrawn.

--- Later in debate ---

[Baroness Helic (Con)]

My Lords, I support Amendments 59, 63, 64 and 67. I believe these are measured and proportionate steps to preserve existing safeguards around child detention—safeguards introduced by a Conservative Government.

Child detention must only ever be a last resort. That is a clear requirement, as many have said, of Article 37 of the UN Convention on the Rights of the Child, which also requires that detention be for the shortest appropriate time. Article 22 requires states to ensure that children seeking refugee status receive “protection and humanitarian assistance”. I hope and believe that these principles will be recognised and shared across your Lordships’ Committee.

There is strong evidence that the mental and physical health impacts of detention on children are severe. For refugee children, often escaping from traumatic circumstances, detention can further compound their trauma. Detention separates children from their peers, interrupts their education, exposes them to violence and denies them the safe, loving and supportive environment that children need to develop and thrive, and which is their right. Detention undermines parental authority and strains the parent-child relationship. This lasts well beyond the period of detention itself. Even short spells in detention can cause trauma and long-term mental health risks for children. When we detain refugee children, we should know that we are making their future lives and integration into society even harder.

My noble friends in government may have said that they recognise these impacts and do not want to detain children, but I am afraid that, as written, this is precisely what the Bill will do. My noble friend Lady Mobarik has explained the existing limits and how the Bill would change them. To reiterate: the detention powers in the Bill would apply to all migrant children and could see them routinely detained in any location for an indefinite period. This is simply not in line with the principle of child detention as a limited last resort.

We know that the immigration system is overstretched. As such, we can reliably expect every time limit and latitude granted to immigration officials by the Bill to be exploited to the full. Therefore, we must make certain that children’s rights and the limits on their detention are guaranteed in law. It is not good enough for my noble friend the Minister to say that child detention should be exceptional. The law must make it exceptional.

There are some problems which new laws can solve. There are other times when new laws will have no effect—or such serious side-effects that they are entirely disproportionate to the problem. If the Government do not feel that they can regulate immigration and asylum without locking up children for extended periods, that is indicative of a broken system. It is not a problem that is resolved by detaining children.

There is no evidence that the introduction of the existing limits on child detention have led to an increase in illegal immigration. There is no reason to think that removing these limits will improve the Government’s ability to control immigration and prevent the dangerous channel crossings. Exposing children to greater risk of harm, with no guarantee of preventing harm, is not a step we should accept.

The existing limits on child detention, brought in after careful consideration by the Conservative Government, meet the practical need that sadly exists. They ensure that detention is strictly controlled and time-limited, as the UN Convention on the Rights of the Child requires. They mitigate the harm that detention causes. They make detention the last resort. That is what we must retain, and I urge noble Lords to support these amendments.

[Baroness Hamwee (LD)]

I remember well when the detention of children was ended by legislation. I visited Cedars, the property—I do not like the term “facility” in this connection—near Gatwick that was used for two or three days before the removal of families who were going to be removed and were at the end of the argument, if you like. What was particularly notable to me were the facilities for the children, and the support that was given to them, who were accommodated there for a very short time, to help them prepare to go back to a country that they may or may not have remembered—indeed, that they may not have ever lived in. It suffused the whole place and was really admirable. You only had to walk into the place to see the equipment and toys, and the information that was set out, as well as the work being done by social workers to support the children concerned. There were no families there at that point; the property used to allow visitors only on days when it knew that no families would be in residence.

I have a number of amendments in this group. The first is Amendment 59A, which seeks to probe the “discretion” given to the Secretary of State in making regulations regarding the detention of unaccompanied children. Amendment 64A is a similar amendment. The reason for my tabling this amendment is to understand whether the envisaged discretion can be exercised to extend the circumstances specified in an earlier part of the clause or to narrow those circumstances.

I discovered a possible answer to this when looking at my next amendment, Amendment 61B, which would provide for the affirmative procedure. Amendment 64C is a similar amendment. I tabled this amendment out of pure instinct that there should be an affirmative procedure, not a negative one. I subsequently discovered that the Delegated Powers and Regulatory Reform Committee, with considerably more logic than I bring to the matter, recommended the affirmative procedure. I quote its report:

“The Memorandum explains that the negative procedure is considered appropriate because ‘the effect of any regulations is to limit the circumstances in which an unaccompanied child may be detained or the duration of detention for the purposes of removal’. In our view, this explanation is misconceived”.


That is very much committee speak for, “We really disagree”. The report went on:

“The regulation making power can only be viewed as a limiting power from the perspective of the Bill as introduced into the House of Commons which conferred an unfettered power to detain unaccompanied children”.


However, amendments were then made in the Commons, so

“no such unfettered power of detention exists in the Bill as introduced into the House of Lords. It is the regulations alone which will specify the circumstances in which unaccompanied children will be capable of being detained, in the absence of which there is no power to detain such children. Given the importance and sensitivity of the subject matter, we consider that the affirmative resolution procedure should apply”.

As I say, the committee approached this with considerably more logic and power than I was planning to bring to it.

Illegal Migration Bill

Baroness Hamwee Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

However, as the Bill stands, a victim of trafficking can be returned as soon as possible and without waiting for the results of the identification process. Furthermore, during the process, the individual should be provided with all the relevant assistance indicated in Article 12 of ECAT, which sets out six forms of assistance to which the individual is entitled. How far have His Majesty’s Government taken into account Articles 10 and 12 of ECAT? I think we would all like to know, and I look forward to hearing the Minister’s response.

[Baroness Hamwee (LD)]

My Lords, I have Amendment 85D in this group and have added my name to Amendment 85C from the noble Lord, Lord Alton, and the amendments from the noble Baroness, Lady Ritchie, and the noble Lord, Lord McColl. I have also tabled opposition to two clauses standing part, because we on these Benches oppose the whole approach to modern slavery and trafficking in the Bill. We oppose every clause in the Bill and have tabled that opposition because it is not a matter of tweaking, although the amendments draw attention to some particularly egregious provisions.

Clause 25 is about suspension and renewal, but its very existence, sunsetting after two years, indicates, as the JCHR noted, that the Home Office recognises the severity of the provisions. They may be short term, but they will not feel that way to victims and survivors. Can I just say how much I admire the work that the JCHR has done on the Bill? It has produced a splendid report, which I am afraid I flicked through to find the bits relevant to today—but then I am human, and the whole of it will get read.

What evidence is there of abuse of the system? Assertion is not evidence. What evidence is there that victims of modern slavery are likely to be a danger to the public or a threat to public order? Is it really appropriate for a Minister, having sunsetted a provision, to revive it by regulations? A lot of constitutional points arise in the Bill. Mind you, I would rather see it sunsetted before the sun even rises.

When the Bill was starting its passage through Parliament, I was in a taxi and the driver inevitably wanted to tell me what Parliament should be doing. On the subject of small boats, he said he was concerned that his children should be safe from all the terrorists arriving in small boats. He was hearing the message that the Government wanted him to hear. Actually, we had quite a reasonable conversation about asylum seekers and he was very receptive to a number of the things I said, but it brought home to me just how dangerous the Government’s messaging is: it is dangerous to individuals, dangerous for cohesion and integration, dangerous in the attitudes it fosters and much else.

As the JCHR said, how can the modern slavery clauses be applied compatibly with Article 4 of the convention, which places on the state positive obligations that are absolute and cannot be derogated from? A similar point arises with ECAT. The JCHR recommends that Clause 21 be removed, and although I took a little comfort from the fact that our instincts were backed up, that does not achieve it, of course. As the committee said, there should at least be no removal of asylum seekers until a “conclusive grounds” decision has been made. As Amendment 85D indicates, one of our concerns is the recovery period, as it always has been. For many victims, 30 days is nowhere near enough for them to recover. There being no period for recovery at all is far worse.

Amendment 90 refers to co-operation with investigations and proceedings. The point that occurred me a day or two ago follows on from what the noble Lord, Lord Carlile, has been saying. I do not think the point has been made that the absence of the victim may jeopardise proceedings in a number of ways, including because the victim is not available for cross examination, either in person—that is always best—or by video link if that is what the Home Office envisages. I want to take this opportunity to ask the Minister: what is envisaged? Are the Government confident that it will always be possible to give evidence by video link, given the countries to which asylum seekers may be removed? Is this to be a provision in removals agreements? It seems to me that not a lot more than lip service is being paid to the importance of tackling smuggling and trafficking gangs, improving the conviction rate and securing remedy for victims. Nothing in the Bill will increase the efficiency of all those things.

Finally, I want to say a word on Amendment 146 in the name of the noble Lord, Lord McColl, which addresses the absence of an Independent Anti-Slavery Commissioner. I hope we will not hear from the government Front Bench that a new commissioner will be appointed “in due course”. The lack of an appointment for over a year now makes the Government’s lack of real concern about modern slavery very evident.

[The Lord Bishop of Southwark]

My Lords, Amendment 88 in the name of the noble Lord, Lord Coaker, is supported by my right reverend friend the Bishop of Gloucester, who regrets that she is unable to be here today. There is much similar ground in this amendment to others, but this amendment focuses specifically on victims of sexual exploitation.

The Bill directs that victims of modern slavery, including victims of sexual exploitation, shall be subject to detention and removal to their own country or to a third country. As we have heard, the principal exception to this is if the Secretary of State is satisfied that the individual is co-operating with criminal proceedings and that their presence in the United Kingdom is necessary for this to continue. We know that the Government have committed to victims of sexual violence and exploitation in this country. The UK ratified the 2011 Istanbul Convention on Preventing and Combating Violence Against Women and Domestic Violence only last summer and there has been much work done over the past few years to increase awareness and tackle perpetrators. To deny those who have arrived here safety and protection is a regressive move.

--- Later in debate ---

[The Lord Bishop of Durham]

My Lords, I rise to support the removal of Clauses 22 to 24 and 27, as proposed by the noble Baroness, Lady Hamwee, and my right reverend friend the Bishop of Bristol. As the noble Lord, Lord Coaker, noted, many of the arguments are similar to those related to Clause 21, so we will not repeat them.

Clauses 22 to 24 carry through the logic of Clause 21 and remove protections and support from those who, crucially, have already been identified and assessed as having reasonable grounds to be considered a victim of trafficking or modern slavery. These victims are not self-identified or -assessed. They have to be referred by a first responder agency, such as the police, and assessed by the competent authority.

The insidious nature of applying these provisions retrospectively is that there are people now in safe houses who are receiving specialist support to rebuild their lives or to build a legal case against their abuser that might be used by law enforcement. To have those protections and support removed from them before a conclusive grounds decision can be reached on their case seems cruel. Someone who has potentially just escaped an abusive situation and has been assessed by a first responder and the Home Office as having a reasonable case and who is for the first time receiving support from a specialist agency could be told out of the blue that support is withdrawn and they are subject to detention and removal. To deter one group of people, we will wash our hands of a much larger group who did not arrive by boat or even necessarily of their own volition.

The long and short of these clauses is that to weed out an unknown and unproven level of abuse, and without any evidence that it will deter Channel crossings, we will be simply abandoning victims. We will be doing so in a thoroughly dramatic and cruel way by withdrawing support that has been offered. I cannot see this is justifiable, still less desirable, and I ask the Minister to consider the clauses in their entirety.

[Baroness Hamwee (LD)]

My Lords, I am not going to repeat the points that I made on the first group because they apply in a very similar way to the amendments in this group, which in our case amounts to opposition to the clauses standing part of the Bill.

In the first group, I strayed into Clauses 25 and 26, which should really be here—the revolving door of a revolving sunset. A point I did not make was how much scope the Secretary of State has to keep on altering the direction of how things go with minimum scrutiny because, to me, scrutiny should include an opportunity to make changes. So much is dealt with by regulations. All the clauses on modern slavery are part of a whole, which, as a whole, we oppose. The Bill does nothing to tackle modern slavery and trafficking, does away with support for many victims and damages the UK’s reputation. Like the noble Lord, Lord Randall, who spoke earlier, I do not much like the term “world leading”, but that was what people were saying of us not so very long ago.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, a number of years ago, I chaired an inquiry in Scotland for the Equality and Human Rights Commission of the United Kingdom to look into the position of trafficking in Scotland because it was a surprise that at that time there had not been any prosecutions. Was this because there was no problem in Scotland, or was something happening with regards to investigations?

I want the Committee to know that after many years of practice at the Bar, doing some of the most shocking and desperate cases, the experience of chairing that inquiry into modern slavery was revelatory to me in hearing evidence—particularly, of course, from women who had been sexually used, and used in the most horrifying ways, where their whole days were spent servicing men. Afterwards, they needed to be looked after, cared for and encouraged to believe that their families back in the countries from which they had come would not be punished if they were to testify in a court of law. The threats that they had experienced were of such a kind that they lived in terror of those who had victimised and trafficked them.

I really do feel—I heard earlier one of the Conservative Back-Benchers asking the Minister whether he had ever met anyone who had been trafficked—that meeting those who have been trafficked is a shocking business. It also goes on to those who, for example, are subjected to slavery within the domestic environment, who are worked almost to death. They are brought over from other countries, live in households in which they are expected to get up at the crack of dawn and work through until the wee small hours of the following day, and are not rewarded—their wages are supposed to go to their family back somewhere else. The accounts that one hears are just shocking.

The fear that people have, which has to be catered for in having them give testimony in a court of law against those who have been their traffickers, is such that to be removing all of that is just shocking. It is unbelievable to people in other parts of the world. My work has now changed; it is now in international law, and everywhere I go people are shocked by Britain, which led the way on this and was so inventive in creating this legislation. Other countries are now saying “What is Britain thinking about?”, and we are really uncertain as to what the Government are thinking about.

Illegal Migration Bill

Baroness Hamwee Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Lord Green of Deddington (CB)]

My Lords, I will be extremely brief. I suggest that we look at these issues, which have now been dealt with in great detail, in a wider context. The fact is that the asylum system is a shambles; I will not go into that any further—we all know that. However, we need to be very careful before we make further commitments on safe and legal routes.

The wider reason is that, last year, we had overall net migration of 606,000. Of those, roughly 200,000 were refugees of different kinds—I am putting it in the most general terms. If that is allowed to continue, and if we fail to reduce the other elements of immigration which are also rising very quickly under this Government, we will have to build something like 16 cities the size of Birmingham in the next 25 years. Nobody has challenged that, because it is a matter of arithmetic.

We face a huge problem. Therefore, I suggest that whatever the arguments for this particular category may be, we need to keep well in mind the wider impact on the scale and nature of our society. That should not be overlooked.

[Baroness Hamwee (LD)]

My Lords, I have my doubts about the term “safe and legal routes” as well. I would prefer to focus on safety; to talk about legal routes now impliedly accepts the argument that people who come here in the way that we have been discussing are in some way illegal. I do not think the routes are illegal any more than the people.

I did not know that my noble friend was going to refer to the recent report of the Justice and Home Affairs Committee on family migration, published in February. It raised a number of matters pertinent to the debate. Noble Lords will be familiar with the problem that one of our recommendations addresses. We recommended that the Home Office should allow biometrics to be completed on arrival in the UK for a wider range of nationalities in crisis situations. As noble Lords will know, there are many countries in which it is not possible to reach a visa application centre before travelling in order to enrol your biometrics. There are countries which do not have them. My noble friend Lord Purvis of Tweed said of the Government’s attitude to Iran and Sudan that they do not recognise the reality of the situation. In this connection, I do not think they recognise the realities either.

The reply from the Government arrived less than a week ago. I hope that this “in due course” is quite quick, and we will have the opportunity to debate it, but who knows? The Government said:

“Where an applicant considers they cannot travel to a Visa Application Centre … to enrol their biometrics, they can contact us to explain their circumstances”.


Well, that sounds practical, does it not? They continued:

“New guidance will be published in the near future setting out the unsafe journey policy. Where an applicant believes that travelling to a VAC would be unsafe, their request will be placed on hold pending the new guidance being published, however, should there be an urgent requirement to resolve their request this should be made clear in the request and consideration will be given as to the applicant’s circumstances and whether there is an urgent need to travel to the UK. If the request is deemed to be urgent we will contact the applicants to explain available options prior to the guidance being published”.


What a neat and tidy world the Home Office thinks exists.

[Baroness Chakrabarti (Lab)]

My Lords, I know this is not something I say very often, certainly not in the context of this debate, but the Government are to be commended for their welcome to Ukrainians and Hong Kongers, and a little less so for their slightly less warm welcome to Afghans.

Even more than commending the Government, I commend the British people who opened their homes and hearts to these desperate people. When we are making these generalisations about what our countrymen will or will not tolerate and what the will of the people is or is not, it is important to remember that. There is real value in allowing people to open their homes and hearts, rather than putting people on barges or in de facto prisons and so on. It is that separation that leads, in part, to the dehumanisation of these people who are coming to our shores in the most difficult times.

Illegal Migration Bill

Baroness Hamwee Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

Moved by

[Baroness Hamwee]

132: After Clause 60, insert the following new Clause—
“Operational efficiency(1) Within six months of the date on which this Act is passed the Secretary of State must publish a management review undertaken by management experts outside the Home Office, of—(a) the efficiency of the processing by UK Visas and Immigration of applications, and(b) the efficiency of the removal by Immigration Control of persons whose leave to remain has expired.(2) For the purposes of this section—(a) “efficiency” includes fairness, and(b) the review must include information regarding the numbers of appeals and their success rate.”Member's explanatory statement
This amendment requires the Secretary of State to commission an independent management review of the efficiency of UK Visas and Immigration in processing applications and the efficiency of the removal process for those whose leave to remain has expired.

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[Baroness Hamwee (LD)]

My Lords, this is the first of a number of proposed new clauses relating to the efficiency of the Home Office and the elusive—maybe even illusory—impact assessment statement. We know we will be told that the impact assessment will be published “in due course”. The timetabling may be clear to the Home Office but it is not to any other noble Lord who has spoken. It occurred to me that the Home Office could really teach even Avanti West Coast or TransPennine Express something about timetabling.

We cannot put into the Bill that it should not go to Report without an impact assessment. Amendment 149 is therefore one of a number that I have tabled, all following the same form of drafting, so that the Bill should

“not come into force until”

and unless various things had happened, one of them being the receipt of the impact assessment. I realised, on reflection, that it was not my cleverest thought because I did not mean any old sort of impact assessment; I meant the sort that the noble Lord, Lord Carlile, was referring to the other day, when he talked about due diligence. That is a term I understand pretty well, as I think most people would. However, the amendment enables me to make the point that noble Lords have been making throughout.

On Monday, the Minister certainly referred to an economic impact assessment, as I think he mentioned before. My reading of the debates is that noble Lords want far more than just an economic assessment. I do not need to spell out that the impact of the Bill on third-sector organisations and so on, as well as individuals, will be considerable.

Amendment 132 is about the operation of the Home Office. Frankly, it is a pretty mild amendment, especially given how often it is remarked—I agree with this—that the backlog of applications is the problem, not the number of asylum seekers. The amendment simply calls for a management review by independent experts.

Many people are calling for the Home Office to clear applications from asylum seekers who come from countries whose nationals succeed in their applications in almost every case. We have heard reference to this throughout the Committee. It should be quite straightforward, but I confess that I am in two minds about it. I am anxious that asylum seekers are not all in the same position or with the same characteristics, even if they come from the same country. It would be too easy not to see each asylum seeker as an individual whose application should be treated as that particular individual’s application. However, that does not invalidate the point that what has been happening—or not happening —in the Home Office, rather than in the channel, is at the heart of the situation.

I mentioned earlier today the Justice and Home Affairs Select Committee’s report, All Families Matter: An Inquiry Into Family Migration, and the Home Office’s response to it. During the inquiry that led to that report, the committee, which I chair, heard from witnesses vivid descriptions of their attempts to find out what was happening to their applications. To give one example, people said that they had to hold the line for long periods and had to give a credit card number in their details because they had to pay for the call. They paid to sit on the phone but then found, when they got through, that they were not speaking to the right person or that the number that they had been told to call was not the right one. The frustration and distress mount and mount. We know that the Home Office’s service standards were affected by the Ukraine visa scheme and that the Home Office aims—I stress that word—to begin republishing quarterly performance data as soon as possible. Let me stress that I do not think that any of this is the fault of individual officials; there is something about leadership and management that needs to be sorted.

I will not read a lot from the Government’s response to the committee’s report but I want to pick out a couple of points. We made these recommendations:

“The Home Office should adopt a new approach to communication … The Home Office should establish standards about its communication with applicants and routinely publish statistics on whether these standards are met. Applicants should be able to contact the Home Office free of charge”.


The Government’s response states that the Home Office

“is working on a notification service”;

it is “currently in test”, it says. It goes to say:

“All applications are proactively monitored, and customers”—


I hate the word “customers” in this context—

“are notified prior to the end date of the service standard”.

Communication does not seem to be the Home Office’s strongest point or its natural behaviour; it is not one of its characteristics. So much of this goes back to efficiency and sympathy for customers, which matters an awful lot. These people feel that, too often, too many of them are treated as statistics and numbers. The service is a poor one. That is one of the reasons why I have tabled Amendment 132, which I beg to move.

[Baroness Chakrabarti (Lab)]

My Lords, Amendment 139 in this group is in my name. This group is all about efficiency and administration. Amendment 139 is purely a probing amendment—there is no way that anyone would seek to engineer changes to the machinery of government via an opposition amendment to yet another immigration Bill—but I put it down to probe the tensions that have been emerging and increasing in recent years, even months and weeks, between the respective competencies and missions of the Foreign, Commonwealth and Development Office on the one hand and the Home Office on the other. I also tabled it to stress the vital importance of international co-operation in dealing with the worst refugee crisis since just after the Second World War. It is, I am afraid, a crisis that is only going to deepen with the threats posed not just by the various conflicts all over the globe but by the climate crisis, as others have said.

Amendment 139 probes and sets out the kind of functions that sit with the Secretary of State. Noble Lords will remember that the Secretary of State is indivisible, so when Governments of various stripes move the deckchairs around and pass functions from one department to another or even rename or reconstruct departments, the Secretary of State is the Secretary of State. The kind of functions that I set out in my suggestion for an office for refugees and asylum seekers are those in general that are much more suited to the expertise and mission of the Foreign Office. That is why consideration of the various international obligations is set out, such as the function of considering safe passage and humanitarian protection and advising the Secretary of State in relation to aid and other action in conflict. It is the relationship between over there and over here.

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[Lord Sharpe of Epsom (Con)]

I will certainly ensure that the noble Baroness’s points are noted in the department.

Finally, Amendment 139FD would place a duty on the Home Secretary to publish quarterly statistics on the Bill’s operation after it is enacted. Again, I have no issue with the basic premise underpinning the amendment. We already publish a raft of immigration statistics on a quarterly basis and I have no doubt that these regular publications will be augmented to report on what is happening under this Bill once it is commenced. We will consider carefully what data it is appropriate to record and publish as part of our implementation planning. I am sure that the noble Lord, Lord Coaker, and his Front-Bench colleagues in the other place will not be slow to press the Government for the kind of data referenced in the amendment.

I and my ministerial colleagues, in particularly my indefatigable noble friend Lord Murray, have heard loud and clear the calls from around the Committee that the economic impact assessment for the Bill should be available to your Lordships before the start of Report. My noble friend has committed to updating the House before the first day of Report and I have already read out the Home Secretary’s comments from this morning. However, having had this opportunity to debate the issue again, together with the other issues addressed in these amendments, I invite the noble Baroness to withdraw her amendment.

[Baroness Hamwee (LD)]

My Lords, on the question of a secret plan or no plan, the announcement that came out the other day—it was almost not an announcement —that the provision about two classes of asylum seekers in last year’s Bill had been ditched suggests that there is no plan. On the question of external management consultants, I am not a particular fan of management cons; there has not been a success story so far, has there? My noble friend Lord Scriven’s reference to the ICIBI report was absolutely on point: reports from the ICIBI, the National Audit Office and so on do not seem to lead to any change, so one has to try something.

I am left with a very big query: why can the impact assessment not cover variables? It should address the “what ifs”. As I am reminded, it is required to provide options, and over the years I have seen so many impact assessments that do provide options: “if such and such, then so and so”. The Home Office is well on the way to out-Rumsfelding Rumsfeld. I beg leave to withdraw the amendment.

Amendment 132 withdrawn.

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[Baroness Lawlor (Con)]

My Lords, I thank the noble Baroness, Lady Ludford, for raising this interesting point and for her proposed Amendment 133. The purpose of the Bill is to prevent and deter illegal migration, and it provides for swift removal, with very few exceptions. Therefore, I am not quite sure why a new clause after Clause 60 is necessary, particularly because, in respect of applications for work from asylum seekers who are already having their asylum claims processed, as far as I know—I am subject to correction here—those are covered under the 2016 Immigration Rules. Part 11B sets out the policy criteria, which can be found in paragraphs 360A, B and C.

I will also comment on various noble Lords’ claims about the potential contribution that asylum seekers can make to the economy. Yes, there may indeed be contributions which can be made, but perhaps we should also consider the costs, the compliance costs and the fact that the UK is trying to move to a high-skills economy, where people with higher skills or where there is a need already can apply to work here under the normal rules. I cannot see why we need this amendment to the Bill.

[Baroness Hamwee (LD)]

I had not intended to say anything about this amendment, but I will say a couple of things. First, those of us who have met a number of asylum seekers have been very impressed by the high level of skills and enthusiasm for work that they exhibit. Secondly, in response to the noble Baroness, Lady Stowell, I understand the point that she is making about the objective of the Bill, but it has a very long Long Title and I doubt my noble friend would have been able to table her amendment had the clerks not agreed that it was in order.

[Baroness Stowell of Beeston (Con)]

I am not in any way trying—

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[Baroness Hamwee (LD)]

My Lords, I am sorry if the noble Baroness misunderstood my first comment. It was in response to the point made by the noble Baroness, Lady Lawlor.

[Lord Carlile of Berriew (CB)]

My Lords, I hope that the noble Baroness will not mind my using her as an excuse but, on reflection, I think that I was unkind to the noble Baroness, Lady Lawlor, and I wish to apologise to the House.

[Baroness Hamwee (LD)]

My Lords, shall I move on to Amendment 150? In fact, it takes us back to the previous group; I have no idea why it comes into this group. It would provide that the Act should not come into force until at least 28 days—I propose—after the Secretary of State has published a statement confirming the number of persons who, for a period of six months or more, have been awaiting final determination of their claim for asylum; and that, for not less than six months, that number has been not more than 20,000.

That may be a little circular and rambling but, basically, it proposes that we should get to a steady state in dealing with asylum applications. The periods may not be ones that noble Lords agree with, but I propose a figure of 20,000 people, which is not a negligible number of people. This amendment seeks to be realistic and provide a bit of—to our minds—common sense to the context of what we are debating.

I am grateful to the noble Lord, Lord Carlile, the noble Baroness, Lady Neuberger, and my noble friend Lord Paddick—who probably had no option but to sign it. This is a serious amendment that follows on from the serious points made about the operations of the Home Office. It is the backlog that is the problem. So much of this debate has suggested, implicitly or explicitly, that the position that we are in is somehow the fault of those who are seeking asylum, which is not an easy thing to take on.

[Baroness Neuberger (CB)]

My Lords, I will speak to Amendment 150, to which I have added my name, and indeed to all the amendments in this group—I will be very brief.

Of course it is right that we should get the backlog down, and of course it is right that we should have a steady state, if you like, and be able to operate an asylum system that is humane, speedy and efficient. It is none of those things at present and we do not show any great signs of getting there any time soon. That is one reason why we suggest that the provisions of this Bill should not come into force until that has been achieved.

I am, along with my noble friend Lord Carlile, a member of the Woolf Institute’s Commission on the Integration of Refugees. I am also Rabbi Emerita of the West London Synagogue, which runs a drop-in for asylum seekers on a regular basis and has done for more than 10 years. I also chair a small family charity that provides scholarships for young asylum seekers to access education, which they otherwise could not do because they cannot get student loans. The reason I raise those things is that they mean that I talk to quite a lot of asylum seekers, for a variety of different reasons. I have never yet met an asylum seeker who has managed to get to this country who does not want to work or is not willing to work. Most of them are in fact very talented; the students we support are unbelievably talented and have been through absolute hell, but nevertheless show incredible determination and eventually get serious professional qualifications and very good degrees.

It seems to me that what we need to do in this House is look seriously at what we want to achieve by an asylum system. Surely we want to achieve the allowing in of those who are genuinely in fear of persecution, as well as all the other reasons that we allow asylum seekers in, and create a refugee system. In so doing, however, we want to treat people humanely, as the noble Lord, Lord Cormack, said; his was a very impressive speech. We want to have coming here people who want to be here and make a contribution. We need to think quite hard about what we are trying to do. There is no pull factor, really—it just is not evidenced—but there is a very large number of desperate people seeking asylum in this country. Those who are genuine and can prove it should be treated humanely, accepted and allowed to work even if their full refugee status has not yet been achieved.

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Moved by

[Baroness Hamwee]

136: After Clause 60, insert the following new Clause—
“People smuggling(1) Not less than six months before the other provisions of this Act come into force, the Secretary of State must lay before each House of Parliament a report regarding agreements and discussions with the governments and authorities of other countries, including those bordering the English Channel and the North Sea, concerning the steps taken or agreed or proposed to prevent or deter a person from—(a) charging refugees for assistance or purported assistance in travelling to or entering the United Kingdom;(b) endangering the safety of refugees travelling to the United Kingdom.(2) The report must focus on steps other than the provisions of this Act.(3) This section comes into force on the day on which this Act is passed.”Member’s explanatory statement
This new clause requires the Secretary of State to publish a report on the actions that are being taken to tackle people smugglers.

[Baroness Hamwee (LD)]

My Lords, Amendment 136 is one of a series of amendments we have tabled on the criteria that should be met before the Bill—an Act by then—comes into force. Amendment 136 is about people smuggling, though the term is not used; about

“(a) charging refugees for assistance or purported assistance in travelling to or entering the United Kingdom; (b) endangering the safety of refugees”.


The answer to most questions, of course, is to stop the boats. I wondered during the debate on the previous group whether “stop the boats” actually features as a phrase in the Bill. I do not think it does, but it seems to be the answer to everything.

People smuggling, the criminal activity which is so closely related to small boats and which the Bill purports to deal with, led to subsection (2) of the proposed new clause: the steps that are included in the Bill are not, in our view, an answer to the problem. I find it very distressing that, with such a serious situation, we have a Bill that implicitly blames victims, and we hear very little other than platitudes about tackling the criminals. We know, of course, that people fleeing by boat, endangering their lives and losing their lives, is not unique to the channel and the North Sea, which are referred to in the amendment. Geographically, we are most closely affected by those, but a lot of lives have been lost by people fleeing from countries bordering the Mediterranean and further afield.

My name is attached to Amendment 139F in the name of the noble Baroness, Lady Kennedy. As she is not here, I will speak to it very briefly, because I think it would be a pity if there was no response from the Government, and I have no doubt that the Minister has a response—he is nodding. The noble Baroness’s proposal, supported by the noble Lords, Lord Alton of Liverpool and Lord Carlile of Berriew, as well as by me, is that

“Where a person meets the … conditions in Section 2”—


which is the fulcrum, if you like, of the Bill; and I like the way it is phrased, rather than “meets the criteria”—

“and is suspected of involvement in genocide, crimes against humanity or war crimes, the Secretary of State is required as soon as reasonably practicable … to refer the person to relevant authorities in the UK for investigation and possible prosecution; … to cooperate with authorities in other safe countries and international tribunals who may be investigating the person”.

I look forward to the Government’s views on that and beg to move Amendment 136.

[Lord Swire (Con)]

My Lords, a more sensitive soul might be somewhat disheartened, having sat here for a large part of this debate only for the entire Chamber to empty at the very thought of me saying anything at all, but I will do my best. Perhaps I am getting an early reputation in this place already.

I will speak to the amendment in my name and those of my noble and learned friend Lord Garnier and my noble friend Lord Soames of Fletching, who unfortunately is unable to be with us but would have liked to have taken part in this debate had he been able to. There has been a lot of discussion about the Bill’s scope, and I was quite pleased to get this amendment through the Table Office, because it is slightly wide of what the Government are debating, which is stopping the boats. The Bill is about illegal immigration, and it is my view that a Government have an absolute duty to secure their own borders and to know who is coming into the country, who is in the country and who is leaving the country at any time. It seems extraordinary that there is still no passport control when people leave this country, as well as when they come into it. Only by knowing how many people there currently are in the United Kingdom can we have a proper, dispassionate and, to use that word, humane debate about what size we are prepared to let our population rise to.

The problem, of course, is with the official statistics—or rather the lack of them. The Government’s publication, Irregular migration to the UK, year ending March 2023, states:

“The statistics presented here relate to the number of people recorded being detected on, or shortly after, arrival to the UK on various routes. They do not provide an indication of the total number of people currently in the UK who have entered the UK via irregular routes or the number of irregular migrants present in the UK. It is not possible to know the exact size of the irregular population currently resident in the UK, nor the total number of people who enter the UK irregularly”.


The official population of the United Kingdom in 2023 is recorded as being just under 68 million, which represents a steady year-on-year increase. Some would have the real population of this country at least 1 million more. Then there is what I call the supermarket theory, which says that the real population of this country is many millions more. I have even read one report alleging that the real population of this country is not 68 million but nearer to 80 million. Of course, if you look on Twitter, you need not necessarily believe all those conspiracies.

My point is not to quibble about the size but to demand that the Government and their various agencies do more to find out the real population of this country. If the figure is 1 million or 2 million in excess of the published data, that, by definition, must mean that hundreds of thousands of people are living outside the system. How can they access healthcare and schools? What about national insurance contributions? What happens to them in old age? If they are outside the system, they are more vulnerable to low wages, abuse, poor housing, inadequate medicine and all the things that we take for granted. They are the losers, but so are we, as by definition they are not paying any tax, for TV licences or anything that people even on low incomes are obliged to pay. They are not participants in society; they are existing on the margins of it.

As it happens, I have no particular view on what should happen to those who have already settled here illegally. I am sympathetic to some sort of amnesty, but I am equally sympathetic to those who feel a sense of injustice that these people have in some way cheated the system—jumped the queue, if you like—and that they should retrospectively be subjected to the same rules on immigration as those who have sought to come after them. However, many of these illegal immigrants will be in low-paid and insecure jobs. Many businesses, certainly those in the hospitality sector, need these people. Indeed, because of Covid and, dare I say it, Brexit there is a critical shortage.

Equally, we must concede that many of those jobs could be filled by British people. I use that term to describe people who are here legally, regardless of whether they were born here or not. We need to be honest with one another. Of course, the argument goes that we need more immigrants to help grow the economy, but, equally, we should recognise and admit that the more people we have, the more schools we will need to open, the more hospitals we will need to build, the more investment in infrastructure we will need, and, critically and perhaps most contentiously of all, the more housing we will need to build. When we have done all that, and the economy has expanded, we will presumably need more immigrants to staff the increased size of our public services. That may well be acceptable, even desirable, but I believe that the British people should have the right to have a say on this. It is not just up to the politicians—or, indeed, if I might say so, the Church—to decide on the size of the population of this country.

I return to my original point. We cannot have an informed debate about this until the Government come to the table and lay before Parliament an annual estimate of the number of illegal immigrants already in this country. My noble friend the Minister will no doubt argue that this information is published, yet it is not published in a clear, unambiguous document—but it must be. Ministers and many others will ask, “If these people have been illegally operating in this country in the black or grey economy, how can we possibly find out who or where they are?” Perhaps identity cards are the answer. I am not convinced by that, but in this information-gathering world, where our data is increasingly harvested, there must be ways. Just look at the NHS app, which most of us signed up to during Covid.

Another approach—I am grateful to Migration Watch for suggesting this—would be that of residual methodology, which allows us to estimate the size of the illegal immigrant population by comparing a demographic estimate of the number of immigrants residing legally in the country with the total number of immigrants as measured by a survey. The difference is assumed to be the number of illegal immigrants in the survey, a number that later is adjusted for omissions from the survey.

I now turn to the second part of the amendment, which covers the issue of foreign national offenders held in our prisons. I am very aware of this because, when I was a Minister in the David Cameron Administration, we were all given countries to be responsible for. We were summoned regularly to No. 10, as he was trying to drive down the number of foreign national offenders and get them back to their countries of origin. It was an astonishingly difficult thing to do, not least because of the interventions of the legal teams who were trying to stop them having to go back. Further difficulties were from some countries which destroyed all the information about them, so it was very difficult to ascertain as to where they had come from and who they were. It is a difficult task, but it is an achievable one.

In March of this year, I asked a number of questions of the Home Office, which I shall not repeat now, on the number of foreign national offenders and how many we had repatriated. From that, it would seem that some 12% of the current total prison population of England and Wales—10,148 people—fall into that category. The cost alone of that is huge. The average cost of a prison place in England and Wales was £46,696 in 2021-22, so we are spending about half a billion pounds a year, by my very ropey maths, on housing these foreign national offenders. The Home Office must get a grip; we want more action and enforcement and fewer excuses as to why it is impossible to send those foreign national offenders home.

The noble Lord, Lord Carlile, who is not now in his place, rather unfairly described the desire from the Government to do something about immigration as an attempt to address the demands of the red wall—non-traditional Tory areas of the country which voted overwhelmingly for this Conservative Government in the last election. That is not a fair accusation; I think that the majority of people in this country want a humane and fair system, and one that actually works and is seen to work. Between 70% and 80% of the British public support measures aimed at deterring illegal immigrants from remaining in the United Kingdom. The truth of the matter is that none of us knows the scale of illegal migration because no official estimate has been published since 2005.

I very much hope that the Government will support this amendment, as I hope that His Majesty’s loyal Opposition will. If they do not, they will need to explain why not. At its simplest, the amendment is to encourage the Government to find out, before we agree on the future immigration policy, how many illegal immigrants and foreign national offenders are in this country, and to publish that data clearly and unambiguously on an annual basis.

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[Lord Stewart of Dirleton (Con)]

The noble Lord, Lord Hannay, from the Cross Benches, submitted my use of the verb “require” to a degree of philological scrutiny, which I had not taken into account when preparing my answer. I take the noble Lord’s point in relation to empowerment as opposed to obligation.

I regret to say that, in relation to the complex interrelating commitments to which the noble Baroness sought my views from the Dispatch Box, I will have to undertake to correspond with the noble Baroness and the noble Lord.

I sum up what has been a short debate by thanking noble Lords for their informed scrutiny of what has been said, not only by me but by others participating in earlier parts of the debate. From the perspective of this Committee, at this stage, the issues have been given a good airing. Noble Lords have referred to the inevitability that we will consider the matter at a later stage but, at present, I invite the noble Baroness to withdraw her amendment.

[Baroness Hamwee (LD)]

My Lords, the debate was not that short, but perhaps it was shorter than those on some of the other groups.

I will just comment on the Minister’s response regarding people smuggling. I find it quite depressing that reliance is placed on deterring demand rather than on deterring criminals. I wonder whether the strategy might include, if it does not now, a communications component. We are told of successful prosecutions, but I am not sure that I ever really read about those in the press; perhaps I read the wrong media—I do not know.

Though I have heard what the Minister had to say, to me it is the criminality—the smuggling—that is at the heart of the problem. I am sure that we will come back to it as an issue in some form at the next stage. For now, I beg leave to withdraw the amendment.

Amendment 136 withdrawn.

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Moved by

[Baroness Hamwee]

139A: After Clause 60, insert the following new Clause—
“Secure reporting for victims of crime(1) The Secretary of State must, by regulations, make provision for the prohibition of automatic sharing of personal data of a victim or witness of crime for the purposes of section 2(1).(2) In section 20 of the Immigration and Asylum Act 1999 (power to supply information etc to Secretary of State), after subsection (2B) insert—“(2C) For the purposes of section 2(1) of the Illegal Migration Act 2023, this section does not apply to information held about a person as a result of the person reporting criminal behaviour which they are a victim of or a witness to.”” Member's explanatory statement
This new Clause would prevent immigration data being shared for the purposes of section 2(1) about a victim or witness of crime who reports an offence. This is to ensure victims are able to approach the authorities for assistance without fear of removal under section 2(1) as a result of that contact or resultant data sharing with immigration enforcement.

[Baroness Hamwee (LD)]

Amendment 139A is in the name of the noble Lord, Lord Alton of Liverpool. The noble Lord, Lord Carlile of Berriew—who has managed to escape for the moment—has added his name to it, as has the right reverend Prelate the Bishop of London.

This amendment seeks to prevent immigration data being shared for the purposes of Clause 2(1), under which the Secretary of State must make arrangements for the removal of people who meet the four conditions. I am very happy to have my name to this—I would not have signed it if I were not happy—because the issue of exemption from the Data Protection Act is one which my noble friend Lord Paddick and I have raised many times since we debated the then Data Protection Bill. The exemption from restrictions on sharing data for the purposes of immigration enforcement or immigration control—I do not recall which but it amounts to the same thing—is a very wide exemption.

The concern here is to ensure that victims can approach the authorities for assistance without the fear of removal as a result of that contact, or of data being shared with immigration enforcement. Noble Lords have frequently made the point about people without secure status having more confidence in smugglers and traffickers than they do in the authorities. The traffickers’ threats are not ones that they will take lightly; they control their victims, notwithstanding that the victims have “escaped”.

We have a number of other clause stand part notices, all amounting to the fact that we oppose the whole of the Bill. The clauses which are listed in this group are not substantive clauses; in other words, they are not about policy. I will mention just one, which is about financial provision. I am alarmed—we all are—at how much will be spent on what we consider to be the likely costs of the policy. I will not go over them again. We are firmly opposed; I do not think I need to spend time re-emphasising that point. I beg to move Amendment 139A.

[Lord German (LD)]

My Lords, I have two sets of amendments in this group. First, Amendments 142, 143, 144 and 147 seek to examine how the Brook House inquiry findings can influence the way in which the Bill will be enacted. Secondly, Amendment 139FE seeks to examine the devolution issues, which I will be looking at specifically through the legislation governing Wales and, very specifically, the Act of Parliament which I want to test the Government on.

First, my intention is to find out how the Government intend to deal with the recommendations of the Brook House inquiry when it reports and apply them to the changes that it will necessitate in the implementation of the Bill. Under the Inquiries Act 2005, the Brook House inquiry into mistreatment and abuse in breach of Article 3 of the ECHR at Brook House immigration removal centre was instituted in November 2019, following a judicial review proceeding. The inquiry has heard extensive evidence, and it is the first public inquiry into the mistreatment of those detained under immigration powers. The conditions of that detention provided a unique opportunity for public scrutiny of and accountability for detention practices and culture.

The inquiry, which we understand will be published in late summer, has heard evidence from detained persons, detention officers, healthcare providers, G4S—which was the contractor responsible for Brook House at the time—employees, Home Office officials, members of the independent monitoring board and His Majesty’s Inspectorate of Prisons. The inquiry also appointed and heard from three experts to address the key issues of the use of force, the institutional culture, and clinical care provision and safeguards. It also examined a vast amount of documentary material and video footage.

Illegal Migration Bill

Baroness Hamwee Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Lord Stewart of Dirleton (Con)]

Indeed, the right reverend Prelate did, and I confirm that I will happily correspond with him and copy in the noble Lord.

[Baroness Hamwee (LD)]

My Lords, I moved Amendment 139A. The right reverend Prelate and I have often had our names paired on amendments on these issues. The story from the noble Lord, Lord Ponsonby, about Home Office officials sitting in court to see what they can pick up was truly shocking, whatever other conclusions one might draw about it.

I am unclear why it is necessary to apply the restrictions about sharing data, automatically or otherwise, when the subject is already detained, but I come back to my principal point—sadly, it is not the first time we have made it from these Benches—that we thought that the effective immigration control exemption in the Data Protection Act, and so much now comes within that, was far too wide and had dangers inherent in it. The examples given by the right reverend Prelate in the field of domestic abuse bear this out.

We have heard a lot about the Government wanting co-operation from victims with regard to the investigation and prosecution of traffickers and smugglers. It does not seem to me that not agreeing to a firewall is the best way to go about getting that co-operation.

[The Deputy Chairman of Committees (Lord Beith) (LD)]

Is the noble Baroness withdrawing her amendment?

[Baroness Hamwee (LD)]

I was just about to. I beg leave to withdraw the amendment.

Amendment 139A withdrawn.

Illegal Migration Bill

Baroness Hamwee Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, five of the amendments in this group have my name and the names of noble and noble and learned friends on them. They are designed to remove retrospectivity in relation to the duty to deport. I, and certainly two of my noble friends, have had the advantage of a meeting with the Attorney-General and officials in recent days to discuss this, and I hope I am not being too optimistic in hoping that we will hear something at least partly welcome from the Minister at the end of this debate. I shall be very disappointed if that does not happen.

Retrospectivity is the enemy of legal certainty. Legal certainty is a basic tenet of common law and of our statutory law. In order to save time, I am not going to cite various very eminent judges who have spoken on this subject. I will simply give the names of Lord Bingham, the noble and learned Lord, Lord Mance, and the great public lawyer the late Sir John Laws. I remind your Lordships that the House of Lords Constitution Committee has emphasised that retrospective legislation should be passed in very exceptional circumstances only. The proof of very exceptional circumstances should require more than mere assertion: it should require clear evidence. The fact that the retrospectivity asked for, as in this situation, may affect a relatively small cohort of people is no mitigation for the wrong of unnecessary retrospectivity.

The Government are not offering evidence. They are offering a refrain, and the refrain is: “Stop the boats”. But they have failed to offer any convincing evidence at all as to how the present circumstances are so exceptional as to justify the Bill’s wide-ranging retrospective powers. This is wholly unacceptable, given that the proposals represent a widespread retroactive overhaul of our asylum law, founded simply on a deterrent effect—“Stop the boats”—which is unproved.

Again, for the purposes of brevity, I will not deliver the whole speech I would have wished to—and will break the habits of a lifetime thereby. But I remind your Lordships that the deterrent effect is hardly borne out by the Government’s own figures for migrants detected crossing the channel in June 2023, the very month we are in. I was surprised they did not appear in the impact statement, because they were available before it. According to those figures, up to that point, 3,506 migrants were detected crossing the channel in June this year, compared with 3,139 in June last year—some 400 more, and 1,500 more than in June 2021. If one looks at the figures for April, May and June 2023 together, the evidence that this retrospective element is stopping the boats is a fairy tale, but one of those nasty fairy tales that keeps the victims of it awake at night because of the uncertainty of what will happen to them.

Furthermore, the Nationality and Borders Act 2022 addressed the same public policy issue and was not retrospective. As Dame Priti Patel MP, the then Home Secretary, said in the Second Reading debate on that legislation, the intention was that:

“Anyone who arrives in the UK via a safe third country may have their claim declined and be returned to a country they arrived from or a third safe country”. [Official Report, Commons, 19/7/21; col. 717.]


In other words, the policy intention was the same, but although there was a little bit of retrospectivity in that legislation, the vast majority of its provisions were not retrospective.

At the conclusion of Committee on this Bill, the Minister admitted that announcing that it applied from 7 March 2023

“may not have had a decisive impact”. [Official Report, 24/5/23; col. 967.]

Well, the evidence suggests that it has not had a decisive effect at all. At best it is equivocal, which cannot be a basis for proper retrospectivity. The evidence does not justify such broad and sweeping legislation, which seeks to apply penalties to those who cross the channel to claim asylum, being retrospective in its entirety. It would set a dangerous precedent whereby the Government could legislate retrospectively, based on no more than conjecture and anecdote.

I respectfully suggest, even at this stage of the Bill, that a dangerous precedent is being set, that we should be deadly serious about the fact that we are dealing with the law and with sound and historic legal practice, and that this is not a situation in which the case for retrospectivity is anywhere near made out.

[Baroness Hamwee (LD)]

My Lords, as the noble Lord has said, brevity does not mean half-heartedness today and these Benches whole-heartedly support the noble Lord’s amendments to which my name has been added. It is not only an academic, philosophical, juris- prudential matter; retrospectivity applied to this Bill will be cited as a precedent for the future and would have an impact in the real world for individuals.

As we have heard, the Nationality and Borders Act is not retrospective. Indeed, the two classes of asylum seekers for which it provided have not even been brought into effect. Ironically, the situation and the figures that have been cited have supported our points that it will not have the deterrent effect that has been claimed. It is a very thin claim. The weather in the case of the channel crossings, and TikTok’s policy in the case of Albania, did have an effect. That puts all of us in our place.

--- Later in debate ---

[The Lord Bishop of Manchester]

My Lords, traffickers exercise control over their victims by convincing them that they will not receive help from the authorities if they seek it. The Bill will simply add credence to that claim.

I fully sympathise with the desire to deter people from using our modern slavery laws as a means to make a spurious claim for protection, but where is the evidence? The Government cannot point at any evidence of widespread abuse of our modern slavery system, yet they propose to remove basic protections for some of the most vulnerable people in our country. It is a basic principle of law—I can find it for you in the Book of Genesis if you want—that, in our desire to convict the guilty, we should not end up punishing the innocent. Amendment 12 is the very least we need in order to protect that vital principle.

Some 41% of referrals to the national referral mechanism relate to people exploited as children, which is why I also support Amendment 112 in the name of the noble and learned Baroness, Lady Butler-Sloss. We must ensure that no child victim, whatever form of exploitation they have experienced or whatever crime they may have been coerced into committing, should be disqualified from accessing protection. We owe that to children. We have a moral responsibility at the very least to provide people with the opportunity to have their case heard through the national referral mechanism without fear of immediate detention or removal.

[Baroness Hamwee (LD)]

My Lords, the noble Lord, Lord Griffiths, told us during the last vote about the views of all the members of the Council of Europe and specifically mentioned Hungary questioning what the UK is doing—Hungary.

My name is on the amendments tabled by the noble Lord, Lord Hunt, on behalf of everyone on these Benches. The survivors of modern slavery should be protected and supported, not just because it is the right thing to do and the UK was lauded for it but to help the prosecution of criminals, of which we hear very little. The Bill indicates the extent to which the Government fail to put themselves in the shoes of victims and survivors, including those who have been trafficked here—who therefore have not come under their own steam—and particularly regarding the need for survivors to be in the UK to assist prosecutions. I could go on, but I will not.

The noble Lord, Lord Alton, is right that we need an independent anti-slavery commissioner in post. How long has it been—a year and how many months? A considerable number of criteria should be assessed, but we are where we are. We maintain our opposition to how slavery and trafficking are dealt with. I congratulate the noble Lord, Lord Hunt, on his filleting of the Bill. We will be with him.

[Lord Carlile of Berriew (CB)]

My Lords, my name is on Amendment 96, along with those of my noble and learned friend Lady Butler-Sloss, who spoke earlier and with whom I agree, and the noble Baroness, Lady Hamwee. It attempts to remove Clause 21(5) and (6). Those subsections mean that a person will be removed from this country unless it is “necessary” and there are “compelling circumstances” to show that it is necessary for the person to be present in this country for the dreadful crimes that we are talking about to be prosecuted. Was the Director of Public Prosecutions asked about the effect of this provision on the likely success of prosecutions? If this clause required it to be advisable for the person to be present for the purposes of the investigation and prosecution, I would be in favour of it, but it goes much further than that and is contrary to all good prosecution practice.

I confess that I have met a lot of organised criminals in my time—as a barrister. I have also met an awful lot of victims in my time, as a barrister and occasionally as a Member of this House and the other place. It is not a level playing field. If the Crown Prosecution Service were asked what was advisable, like anybody who has ever prosecuted a semi-serious case and done cases where some witnesses were abroad, as I have, it would say that it is always advisable to have the witness in court, on a local screen or interviewed in a statutory way if at all possible, not to have them on the other side of the globe somewhere—they are unlikely to turn up and will be intimidated by the process.

Let me briefly compare the criminal we are talking about with the victim. The criminal is familiar with the legal system. He—it is usually a he—is often charming. He is often wealthy and can hire lawyers who may even be Members of your Lordships’ House. He is malign, lethal and cocky in the face of the legal system. Those are the characteristics of serious organised criminals. As for the victim, what is she going to be like? She will be frightened. She is likely to be poor. She will be vulnerable and terrified of the legal system and, to use an Orwellian word, will feel like an “unperson”. Do we really want that?

Illegal Migration Bill

Baroness Hamwee Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, I very much agree with the comments made by the noble Lord, Lord Paddick, particularly with respect to whether what is included in the Bill is an extension of existing powers, or simply a reiteration of what was in legislation that preceded the Bill. The noble Lord, Lord Hendy, did us a great favour in bringing forward a whole series of practical questions which the Minister started to answer in Committee. They are quite serious questions about the practicalities and, as the Minister knows, we have been concerned about not only some of our principled objections but also the workability of some of the clauses and powers contained in the Bill. It is worth reiterating, so it is on the record, what the noble Lord, Lord Hendy, said: the Government require transport workers—whether it be a lorry driver, a train operator, a train guard or a bus conductor—to act in an almost pseudo-police officer role to detain or search people.

If I were in that situation, I would be genuinely concerned about the implications. There are legitimate questions about the powers of detention, how long people would be detained, the use of force, and so on.

Can the Minister clarify one further point? His previous amendments added the words “immigration officer” to make the legislation consistent with later parts of the clause which refer to an

“immigration officer or the Secretary of State”.

Do the Government envisage any difference? Is that wording to cover any eventuality rather than any significant principled thing that the immigration officer could do that the Secretary of State could not, or vice versa? It would be interesting to know, and I look forward to the Minister’s response.

[Baroness Hamwee (LD)]

My Lords, I agree with the points made by the noble Lord, Lord Coaker. I am grateful to the Bill team for confirming this, but it would be useful to have it said in the Chamber that “immigration officer” is an immigration officer of any rank at all. There does not have to be any seniority attached to the post when an immigration officer is given powers in these provisions and elsewhere in the Bill.

[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

My Lords, I am grateful to the noble Lord, Lord Hendy, for moving the amendment in the name of the noble Lord, Lord Davies of Brixton, which seeks to protect transport providers. I understand the concern that this is causing.

To answer the points of the noble Lords, Lord Paddick and Lord Coaker, Clauses 7 and 9 simply reflect the current position, corresponding to the long-standing requirement set out in Schedule 2 to the 1971 Act. As now, risk assessments must be made before directions are given to a carrier, and escorts will be provided where this is assessed to be necessary.

All the practical issues raised by the noble Lord, Lord Hendy, apply equally under existing powers, and there are established protocols for dealing with them. We are not putting any additional burdens on the transport sector; in fact, we are providing for the costs of complying with directions under the Bill, but they will be paid for by the Secretary of State and will not be at the carrier’s expense. The amendment would therefore put the powers surrounding the giving of removal directions at odds with existing provisions and would effectively turn a requirement to remove people into a request, which would then impact on the number of illegal immigrants being removed.

Government Amendments 46 and 47 are prompted by a question posed in Committee by the noble Lord, Lord Ponsonby, who asked how transport workers could deal with a non-compliant person. Again, the answer lies in the Immigration Act 1971. It is already an offence under Section 24(1)(f) of that Act for a person subject to removal to disembark, and these amendments simply apply that offence to removals under the Bill. This then engages Section 3 of the Criminal Law Act 1967, which enables a person to use reasonable force to prevent a crime—a provision that I am sure the noble Lord, Lord Ponsonby, in particular, will be very familiar with.

Finally, returning to the amendments from the noble Lord, Lord Davies, Amendment 85 seeks to amend the definition of “vehicle” to limit the power in Schedule 2 to search vehicles to only those hired by the Secretary of State to remove persons pursuant to Clauses 2 and 3. We would not want to limit the power to search vehicles in this way; doing so would prevent immigration officers being able to search small boats, for example.

Illegal Migration Bill

Baroness Hamwee Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

Once more, Amendment 152 is essential to most other protections which your Lordships propose. As for Amendment 153, I believe Clause 54 to be a negotiating position on the part of the Government, who are trying to negotiate with the Strasbourg court to improve the fairness of the Rule 39 jurisdiction. This speech was two and a half minutes long, and I beg to move.

[Baroness Hamwee (LD)]

My Lords, my noble friend Lady Ludford, who is unable to be here today, has her name to these amendments so I am speaking on her behalf, as it were, and on behalf of these Benches.

I make the general point that interim relief is an intrinsic and sensible part of our law. Injunctions are generally to prevent something happening, to maintain the status quo until there can be thorough consideration of a case. It is that way round because the person who wants to prevent that something happening is at risk of an action which would have a major effect on him—the other way round does not work in the same way. In this case, the action—removal from the UK —would effectively be the end of the story for the claimant and, if not that, it would at least make pursuit of claim from outside the UK very difficult indeed. That is quite different from the depiction we heard last week of a witness on a video link from another room or another building with all the normal support and access to his representatives.

This afternoon, I received an email from the Bingham Centre for the Rule of Law—I stress “Bingham” and “rule of law”; noble Lords will note that title—with quite a long summary of a report on this subject which I understand is to be published tomorrow. It concludes that although improvements could be made to the process in the European Court of Human Rights, they do not affect the court’s jurisdiction to indicate binding interim measures. It makes the point that, when states signed up to the European convention, they expressly accepted that:

“In the event of dispute as to whether the Court has jurisdiction, the Court shall decide”.


So as not to detain your Lordships from making another trip to increase your steps through the Lobbies this evening, I will not read the whole of the summary. However, I make the point that the UK Government have proactively promoted the binding force of interim measures, advocating that other states, such as Russia, treat them as binding and comply with them. Given the provenance of that advice, I take it—and I hope your Lordships take it—very seriously.

[Lord Green of Deddington (CB)]

My Lords, I hope that the Minister when he speaks in a moment will explain what this is intended to deal with. It is only specific to these circumstances; is it that a certain number of lawyers are making a certain amount of money and he thinks that that is not helpful to the policy that the Government intend to put forward?

--- Later in debate ---

[Lord Carlile of Berriew (CB)]

My Lords, it is a pleasure to follow the noble Lord, Lord Bach, who moved this amendment with great skill. I am not going to make a long speech in support of him, because he does not need it. My observation, from refugees and asylum seekers whom I have met in a particular role during the last year, is that many complain that the legal advice they were able to obtain locally, wherever they were placed, was often not accurate, and they had to go through a second round of legal advice.

It is essential that people have access to competent, accurate and correct legal advice, or at least legal advice that might be correct, to enable them to challenge the case made against them. Many of the cohort of people we are talking about are numbed by the experience they have had. They did not expect to be treated as they have been by the United Kingdom. Perhaps, as the Government claim, one might argue that there are some good reasons for their being treated in that way, but to deprive them of the most basic legal advice will cause offence not only to lawyers in your Lordships’ House but to many others.

[Baroness Hamwee (LD)]

My Lords, my noble friend Lady Ludford has put her name to the amendment in the name of the noble Lord, Lord Bach, which he explained very fully, and these Benches support. One often hears that immigration law is too complex for non-lawyers to understand—I have long held the view that it should not be—but, frankly, it is too complex for many lawyers as well. You need to be a specialist, and that is recognised by the system, but one still hears some horror stories.

The realities of legal advice for anyone in detention in the immigration system have long been bleak. There may be advice sessions but they are 30 minutes long, and it takes a long time for the client to be brought to meet the solicitor, which eats into the 30 minutes. Even with the most articulate client, it can take quite a long time to take instructions. I was a practising solicitor for many years and this cohort, as the noble Lord, Lord Carlile, said, consists of individuals whose English may be inadequate. Interpretation is therefore required, which is cumbersome and difficult for everyone. In any event, they have a story that takes support to tell, and that requires a lot in the telling.

Given the relentless speed of the processes under the Bill, this amendment is very necessary. The Government have recognised that legal aid has a place here, given what they have done so far in the Bill and the consultation on the rates. Raising concerns about legal aid became even more relevant with last week’s impact assessment, which drew attention to the problems of accessing legal aid and legal aid services, especially outside London and the south-east. We are very happy to support this amendment.

[Lord Hacking (Lab)]

My Lords, I am a Member of this House whose memory of legal aid probably goes back to before others were here. I was called to the Bar in 1963 and took an active part in legal aid, being not only a recipient of legal aid cases but sitting on legal aid committees. I view it as one of the great social achievements of the Labour Government ending in 1951, and it has been a matter of great sadness that its extent and benefit has been so diminished over the years.

We have here a very important need for legal aid. Most if not all of those needing legal aid will not be able to speak English, will have no knowledge of English law and will be left isolated without that assistance. For that reason, I strongly support the amendment of my noble friend Lord Bach—although, most regrettably, he is not putting it to a Division.

Illegal Migration Bill

Baroness Hamwee Excerpts

Report stage
Wednesday 5th July 2023 Lords Chamber

Moved by

[Baroness Hamwee]

168C: Clause 67, page 68, line 13, at end insert—
“(ba) section (Ten-year strategy on refugees and human trafficking) (ten-year strategy on refugees and human trafficking).”Member's explanatory statement
This amendment would provide for the new clause after Clause 61 proposed in another amendment in the name of the Lord Archbishop of Canterbury to come into force on the day on which the Act is passed.

Illegal Migration Bill

Baroness Hamwee Excerpts

Consideration of Commons amendments
Wednesday 12th July 2023 Lords Chamber

[Lord Randall of Uxbridge (Con)]

My Lords, I shall speak briefly to my Motion P, to which the Minister referred. I should refer to my interest as a deputy chairman of the Human Trafficking Foundation. Perhaps it should be called not the Human Trafficking Foundation but the “modern slavery foundation”, because there is a difference with human trafficking, which is what I think stop the boats is all about. By dint of modern slavery, everybody who is enslaved and arrives in this country has come in illegally. Nobody comes in legally for modern slavery.

I am very disappointed with this Bill. However, I am a pragmatist. Years in retail taught me that sometimes you cannot have everything you want. So when my right honourable friend Theresa May spoke so eloquently and voted against the Government—and I can say as a former Deputy Chief Whip that that was only the second time she has ever voted against the Conservative Whip, which tells you something; you could not wish for a more loyal person—she did so because, as the noble Lord, Lord Hunt of Kings Heath, just said, it is not a great Bill in respect of modern slavery.

However, my noble friend and my right honourable friend down the other end in the other place made some concessions about what they would put in the guidance. My Motion basically asks that those concessions, that guidance, be put in the Bill. I would have preferred my original words—I would have preferred all sorts of things—but in order to make sure that we can get something done for the victims of this horrendous, heinous crime, if the Minister does not have a damascene conversion, when the time comes, I will test the opinion of the House.

[Baroness Hamwee (LD)]

My Lords, from these Benches, I cannot express strongly enough our huge disappointment about what is happening with the Modern Slavery Act. I very much agree with everything that the noble Lord, Lord Hunt, said. The Minister talked about “opportunities to misuse”, when it is the Home Office which approves the first responders who have to get possible victims of slavery into the NRM in the first place. He talked about enabling co-operation but, with what most of the people in this situation will have gone through, 30 days is simply insufficient for them to be able to bring themselves to co-operate with an authority figure in a foreign country when they are still worried about what their trafficker might do when he finds them and about what they will do if they have to try to get away from the system. It is simply not enough.

To co-operate requires support. That, in turn, requires trust, and that, in turn, requires time. Statutory guidance will of course be welcome. But only today I and other noble Lords received a briefing from the Rights Lab at the University of Nottingham on government commitments relating to Part 5 of the 2022 Act—the modern slavery part—analysing whether they had been met, partially met or not met at all. It did not make for very happy reading. It is a shame that one has to say that. We support the amendment of the noble Lord, Lord Randall. We wish that there were more coming before the House tonight that we could support too.

[Lord Coaker (Lab)]

My Lords, I thank my noble friend Lord Hunt for moving his amendments in a concise and informed way and for putting before the House the importance of the Modern Slavery Act and defending its principles.

I draw attention to Motion P1, moved by the noble Lord, Lord Randall, which is particularly important as it seeks to protect victims of modern slavery exploited in the UK. Although the Minister pointed to the protection the Government may give to British citizens, some of the exploited people the noble Lord, Lord Randall, referred to would not be British citizens and would therefore be out of scope.

It is worth spending a minute considering that we as a Parliament are here tonight reflecting on what was one of the finest achievements of the last Conservative Government and one of the proudest achievements of a former Conservative Prime Minister. I stand here as a proud Labour politician saying that. It was one of the reasons why our country was regarded as a world leader by countries across the world, and it was brought about by the actions of a Conservative Government.

When you read the speeches of not only a former leader, Iain Duncan Smith MP, but a former Prime Minister, it is no wonder that the latter is incredulous that her own party and Government would seek, as she says, to undermine completely an Act of which everyone was proud, including most Conservatives. I find it astonishing that the Government Front Benches of this House and the other place should simply sweep her views aside, almost as though they are the rantings of a failed person who is no longer relevant. She deserves greater respect than that, and to be recognised for what she achieved. I think I am right in saying that it was the first such legislation in the world. It was blown away not by a vindictive Labour Government but by her own Conservative Government, who have somehow just brushed it aside.

The noble Lord, Lord Randall, does us a huge service in bringing forward an amendment that I hope has the support of many of your Lordships, from all sides, and which tries to protect something of that achievement, that triumph, of a previous Conservative Government. In doing that, he gives us the opportunity to mark with great respect that achievement and work of a previous Conservative Government and Prime Minister.

I hope that the noble Lord will test the opinion of the House and that noble Lords will see fit to support the amendment in very large numbers, so that when it goes back to the other place they will think again about what they have done.

Illegal Migration Bill

Baroness Hamwee Excerpts

Consideration of Commons amendments
Monday 17th July 2023 Lords Chamber

[The Archbishop of Canterbury]

My Lords, I will speak very briefly to Motion J1. The amendment put forward under Motion J1 aims to ensure that, not only now but in the future, the Government’s policy is examined. As the Minister said, the current Government’s concentration is on international co-operation and working, although with some hesitation at times, with groups such as the UNHCR and others internationally. The amendment would ensure that that strategy—the way the Government are working—and the context in which migration is being considered are brought in front of both Houses, simply for a debate, with an analysis of the situation by the Government.

The Minister has said very clearly that he does not wish this to happen on the grounds that it is being done now, but this Bill is not about today. It will shortly be an Act, and when it is an Act it will last years—it may last many years. Who knows what will happen in elections in the future, whether they are next year, in 10 years or whenever? We cannot guarantee what kind of Government there will be at that time. That is why we have Acts of Parliament and a system of law which requires changes in the case that people wish to change the way in which this country operates.

It seems to me that the problem with the Bill is that it has not started at the right place. Where it needed to start was on a matter such as this—to have a level of national consensus and agreement on what the aim of our migration and immigration policy will be in the long term. We know what our aims are for other matters. For instance, the NHS is care that is free at the point of delivery to all who need it; it is not a political matter—at least not at the moment. That is something that holds us together, and then we argue about how it is done—fair enough.

The Bill, and the failure to pursue this amendment, seems to me to have four very simple failures. I will not repeat what the noble Lord, Lord Coaker, said so eloquently just now. First, it does not give space and time for the Houses of Parliament—for politics—to generate a consensus on what we do about a problem that the Foreign Secretary himself said last week is one that is global, geopolitical and generational. We have to make time to discuss such threats. We put time aside for threats such as climate change. Much of the migration will be generated by climate change and, in being so generated, it will move literally hundreds of millions of people across borders.

We cannot put into the Bill that we should set time aside once a year in both Houses to look at that context and discuss it and try to generate a consensus across our nation, where so many communities, including in my own diocese, which I serve, are divided, depressed and anxious—reasonably, because so much is said to them that does not have a common, united vision for this nation. That is a failure of reconciliation; it is a failure of vision to leave the structures of migration better than they used to be—because heaven alone knows it is more than 25 years since we could last look back and see an immigration policy that was really working. It is not a party-political thing.

Secondly, the rejection of this amendment—and much of the Bill, as we have heard earlier this evening—diminishes parliamentary accountability. It does not say that the Government must come to the House of Commons and the House of Lords and give reasons for what they say. It does not say that a Minister of whichever party must stand up and face people such as the noble Lord, Lord Dubs. I apologise for embarrassing him, I am sure, but I would venture to suggest that he is probably the most respected man in this House. His own experience of being an unaccompanied irregular migrant is without parallel, but his approach was casually dismissed. That is not how we should listen to the wisdom of so many years and so much experience.

Accountability is diminished. Parliament exists to hold the Executive to account—not just this Executive but future ones. It diminishes our leadership. I shall not repeat what the noble Lord, Lord Coaker, said, but he was right in everything he said about the Modern Slavery Act, as was the former Prime Minister today and as she has spoken over the past weeks, publicly and privately. It also diminishes our flexibility. This Bill pins everything down; it does not give grace periods or enable Parliament and the Government to say that the situation had changed dramatically. Who would have said four years ago that we would have 45,000 people coming across the channel in boats? Of course, we must stop that—I agree entirely with the Minister. Of course, we must stop it, but I fail to see how this legislation does that, and I have not heard anything to convince me.

But that is the view of the other place and I agree that, in the end, on most things, except the most essential, this House must give way to the other place. Therefore, I shall not be seeking to divide the House on this Motion.

[Baroness Hamwee (LD)]

I speak for these Benches, first, on modern slavery and trafficking. The Government characterise victims as fraudulent and frivolous—those are both words that have been used in debate—but you do not get into the national referral mechanism unless you are referred by Home Office-accredited first responders. They are not frivolous and they are not fraudulent.

We are left trying to salvage something from the wreckage that the Government are making of our tackling of slavery and trafficking. The Minister in the Commons today said they would not remove anyone to a country where they are endangered. But we cannot know that traffickers will not be operating in the country to which people are removed. The chances must be very high that they will operate in Rwanda, or wherever, and we will be opening up new markets for the traffickers instead of tackling them as criminals.