Border Security, Asylum and Immigration Bill

Baroness Hamwee Excerpts

Report stage
Tuesday 28th October 2025 Lords Chamber

[Lord Cameron of Lochiel (Con)]

My Lords, the Minister knows that the new offences in Clauses 13 and 14 are ones that I support, and he will remember my defence of them in Committee. During our Committee proceedings, I raised two important issues relating to what I consider to be gaps in these two new offences.

The first was the omission of “possession with intent to supply” from the offence of supplying an article for use in immigration crime. My argument here is that the possession of sufficient quantities of such an article is not an innocent act; it is a precursor to the commission of the offence. By failing to criminalise the preparatory acts, I feared that we would not be including within the offence everyone that we wish to capture.

The second gap I identified is that the offence in Clause 14 does not include a person who arranges for two third parties to exchange articles for use in immigration crime. Once again, this is an essential preparatory act whereby one person is facilitating the exchange of goods that will later be used in the commission of the new offence. The problem here is that we know that organised crime gangs are always concocting ever more ingenious methods of circumventing the law, often by removing themselves from the criminal acts and organising exchanges.

In this regard, I am very pleased that the Government have listened and tabled Amendments 4 and 8. It is genuinely welcome that they have listened to the concerns that I raised in Committee, taken those suggestions away and come back to this House with a solution.

The Minister’s amendments would create two further offences within Clauses 13 and 14; in effect, by expanding their reach. Included within the scope of these offences is a person who is concerned in the supplying or the receiving of an article. The second aspect of these new offences is that the person has to know that the relevant article is to be used in connection with an offence, under the relevant sections in the Immigration Act 1971. It is my understanding that those two aspects of the new offences in Amendments 4 and 8, tabled by the Government, would cover possession with intent to supply and the arranging of the exchange of an article between two third parties. I ask the Minister to give me his cast-iron assurance that the Government’s amendments include the gaps that I have identified. With that, I beg to move.

[Baroness Hamwee (LD)]

My Lords, I start from the position of being very unhappy with Clause 13 in any event. The term “intent” in Amendment 3 is certainly familiar, but it is really quite hard to prove. We should not be in the business of creating offences where it would not generally be realistic to prosecute.

On government Amendments 4 and 8, the term “concerned” is very broad. I think it is used in the Misuse of Drugs Act 1971; I do not know how that came into my mind, but I found it. In any event, it is so broad as to be questionable. This clause would criminalise people and, as we said many times in Committee, we see a danger of criminalising asylum seekers by regarding them as doing things that we do not want smugglers to do. We do not want smugglers, but we are sweeping them up in that net.

I have rather the same point about new subsection (1A)(b) in Amendment 4 and the term “in connection with”, which again is very wide. Surely the criminal law covers being an accessory, aiding and abetting, and so on, so I am also concerned about that.

Amendment 6 includes the term “arranges”. How is this not covered by Clause 14(1)(c), which uses the term “assists”?

Overall, we are concerned about the breadth of these amendments. The extension of the offences concerns us—if I can use that word without punning—in any event.

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Moved by

[Baroness Hamwee]

7: Clause 14, page 8, line 10, leave out “by P or another person” and insert “by a person other than P or a member of P’s immediate family”
Member's explanatory statement
This amendment seeks to ensure that the new criminal offence is targeted at people smugglers rather than those seeking asylum.

[Baroness Hamwee (LD)]

My Lords, before we get going on Amendment 7, I want to comment on government Amendments 10 and 11. I thank the Minister for responding not only to the amendments in Committee but to my request for a meeting, and holding that meeting during a week when he had so many—I think he can barely have had time to breathe. It was extremely pleasing to be able to pursue a matter on which we both understood what we were aiming for, even though we could not quite find the words in Committee.

My amendment then was about hygiene kits. From the slightly delicate terminology used by some noble Lords in Committee, I think we had different ideas in our minds. I understand that the Government’s approach to items to assist with cleanliness and hygiene is to take care not to enable items that could be weaponised; hence the different approach to this, which I think is quite ingenious. However, I am left with a question and a bit of a concern about shaving items. I could not come up with an alternative way of expressing it, which would have met the Government’s point, but underlying my concern at the last stage was allowing asylum seekers in a very difficult situation a degree of dignity.

I confess that I asked the Red Cross, from which I received a list of the items that it normally supplies to refugees, and it could not come up with an alternative way of expressing it. I have its crisis and emergency response team’s list, which includes razors and shaving lubricant, while the standard hygiene items that the Red Cross Hackney destitution centre gives out include shaving kits. However, we are where we are. Unless the Minister has anything more that he can explain to me in responding, I want to put my thanks on record.

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[Lord Hanson of Flint (Lab)]

I am grateful to the noble Baroness, Lady Hamwee, for her Amendment 7, and I shall speak to it in a moment. First, I shall speak to Amendments 10 and 11 in my name. I hope, for all the difficulties about some of the issues that the noble Lord, Lord German, has raised in relation to shaving, it is an attempt by the Government to meet the objectives of the noble Baroness’s original amendment in Committee as well as the report on the Bill from the Joint Committee on Human Rights, which raised this as a matter of some importance.

I reflected on it after Committee and asked officials to draw up amendments, and amendments have been drawn up that allow essential items such as soap, tooth- paste and sanitary products to be used. Amendment 11 is there because there are things such as razor blades, or things such as a glass container that could be broken and be available as a weapon, and things such as aerosol cans that can be sprayed in people’s faces, which have to be exempted.

I confess that the question of shaving is one that might be worthy of further reflection and discussion, but we are where we are. This is not a pejorative statement, but some people who arrive will have beards; the ones who do not can wash with soap, use toothpaste and do all those things. Potentially, at some point, they can shave in a more controlled circumstance at a later date. Let us just reflect on that. It is an interesting point for debate but, ultimately, we have tried to settle on a reasonable compromise to meet the objectives of the Committee’s pressure on the Government and the Joint Committee report. I commend Amendments 10 and 11 to the House as they stand.

I have more difficulty with the noble Baroness’s Amendments 7 and 12. I appreciate that the intent of Amendment 12 is to safeguard legitimate legal professionals. I stress that the clause already provides a “reasonable excuse” defence, as she knows. The amendment, by explicitly referencing Section 12(3) of the Legal Services Act 2007, on the very points that the noble Lord, Lord Harper, mentioned—as indeed did the noble Lord, Lord Davies—narrows that defence rather than strengthening it.

Clause 16 is designed to target those who collect sensitive information for the purpose of facilitating immigration crime. It is not in any way, shape or form aimed at those who want to provide bona fide legal advice who are acting within the law. The offences will be intelligence-led and focused on organised criminal activity, not on those providing lawful counsel. For legal advisers to fall into scope of this clause, they would have to be, for example, gathering or providing information or advice to clients on how to make a clandestine crossing to the UK. That is not what legal advice is supposed to be in this circumstance. For once, I find myself in compadre with the noble Lords, Lord Davies and Lord Harper, on that point, and I respectfully ask the noble Baroness not to press that amendment.

Amendment 7, moved by the noble Baroness, Lady Hamwee, seeks to exclude from liability those who handle articles likely to be used in immigration crime, if the intended user is themselves or a member of their immediate family. If I wanted to help to support somebody, I might well claim that I am a member of the immediate family and have an immediate family member supplying me with information—and there might well be organised criminal gangs which exploit family ties by pressure or other means to ensure that they mask that facilitation.

Clause 14 already requires that the article is “likely to be used in the course of immigration crime”. This threshold ensures that only those knowingly contributing to criminal activity are captured. I reassure the noble Baroness that I have been clear throughout the Bill’s progress that this House has a reasonable excuse on the face of the Bill, which is non exhaustive. Given the intention of this offence, and while respecting that the decision to prosecute is made entirely independently of government, I would expect that it would not generally be an operational or public interest matter to pursue people handling items in genuine pursuit of asylum or on behalf of family members. The CPS or any other legal entity that wishes to examine this matter would look at the intent behind the clause. The reasonable defence we have in Clause 14 is one I would refer the noble Baroness to and would hope to have her support on.

The law must remain clear and enforceable. The current drafting provides flexibility and discretion without compromising the clause’s intent. Therefore, I hope that the noble Baroness will both withdraw Amendment 7 and not move Amendment 12 when it is reached. I commend Amendments 10 and 11 to the House as meeting the objectives the House ordered me to look at—in a nice, friendly way—in Committee.

[Baroness Hamwee (LD)]

My Lords, I do not want to go over points that have already been made and which were made in Committee at greater length. However, I think it notable that work done by lawyers cannot, in the Government’s mind, be explicitly referred to. Perhaps I am particularly influenced by the work the Constitution Committee, of which I am a member, is doing on the rule of law, or maybe not.

The noble Lord, Lord Harper, said that a lawyer should not set out—I am paraphrasing—to support a criminal activity by his client. I do not think things are that black and white. Everyone is entitled to a defence. With items such as the documents and information referred to in Clause 16, the client is entitled to have the reason for having those argued, or to argue whether they fall within Clause 16(1). It is a case of blame the lawyers again—“let’s kill all the lawyers”. It is a point of considerable principle to me that the rule of law should be upheld, and that includes citizens being entitled to be supported by lawyers. However, I beg leave to withdraw—

[Lord Harper (Con)]

The noble Baroness implied that I am being pejorative about lawyers; I am not. If lawyers are doing what they are supposed to do, there is no problem at all. This clause specifically states that the person would be committing an offence only if they were collecting the information or using it in order to prepare for an offence. Somebody doing legitimate legal activity is not committing an offence. I strongly support the rule of law and lawyers doing legal work, just not lawyers who think their job is to facilitate immigration crime. I think the clause is therefore very well drafted.

[Lord Katz (Lab)]

I remind noble Lords that concluding speeches to press or withdraw an amendment should be brief and should not be subject to intervention. That is a normal courtesy of the House, according to the Companion.

[Baroness Hamwee (LD)]

If I may stand up, not having sat down, I do not think the noble Lord would argue that somebody who has beaten a person up, for example, should not be entitled to a defence because it is an offence. We do not know the position until that person has been through the process. However, we should not weary the House—I do not want to imply that the noble Lord is wearying the House—by taking this further, so I again beg leave to withdraw the amendment.

Amendment 7 withdrawn.

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[Viscount Goschen (Con)]

My Lords, I also commend the Government on bringing forward this suite of amendments. My remarks will follow and parallel quite closely those of my noble friend Lord Harper.

This is a very difficult area of the law. Social media and the internet are very fast-evolving and extremely difficult to define. So the approach that the Government have taken recognises that this is essentially criminals advertising criminal services—theirs over the next gang’s—and it ought to be addressed. We ought to focus on it, for two reasons. The first is to try to tackle the individuals and organisations behind these activities. The second is to try to get them taken down as soon as possible. We know that is extremely tough to achieve—we have seen it in other pieces of legislation—but that does not mean that we should not try. I certainly think we should.

I am also with my noble friend Lord Harper on his applying a modicum of pressure on the Government by asking how effective they believe these provisions would be. When I asked that very question on a previous amendment, I was given an answer which essentially said, “Well, even if they save one crime, that’s good enough”. The Government should really come forward with a slightly more comprehensive argument. Although, on this suite of amendments, I am less bothered by that, because it is perfectly obvious that what we are talking about here is a large-scale, international, very sophisticated criminal enterprise.

One of the things we have not talked about that much in the House during the passage of this important Bill is the fact that people coming here through these means are very often paying very considerable sums of money indeed: these are not trivial sums. We tend to lump people into groups or buckets and forget that they are often making a very conscious choice, looking at the price and the chance of being either diverted or sent back when they arrive in the UK. From the information that the Minister provided to me by way of a letter, we know that the chances of being removed are around 4%— there is a 96% chance of being successful in remaining—so we have a huge prize for people who wish to come to the country through illegal means and we need to do everything possible to disrupt that. So I hope the Government have got more or less the right approach and I wish them every good fortune in the effectiveness of those amendments.

[Baroness Hamwee (LD)]

My Lords, the noble Viscount has just referred to illegal means, so let me just get into Hansard “safe routes”, if they are needed.

The noble Lord, Lord Harper, presents a very intriguing scenario. If he or I went on to the internet to look up information about any of these issues, would we find an algorithm identifying us as being interested and trying to push unwanted information at us, in rather the same way as, if you buy a lawn-mower, algorithms seem to think that you might want to buy further lawn-mowers, and so on? I had not really thought of that, but I take the point.

On Amendment 14, perhaps I can ask the Minister a couple of questions. New subsection (2)(a) uses the terms “automatic, intermediate and transient”. In the next subsection, the words are “automatic, intermediate and temporary”. Are they different? If they are not different, why is the same term not used?

On Amendment 13, on the underlying offence, it is a very broad offence with a very narrow defence. Of course, I understand why the Government are looking at this. I do not suppose there is any way of not being left with a feeling that, in this area, one is always playing catch-up. I said it is a “broad offence” because

“the person knows or has reason to suspect”.

That is pretty difficult. It is certainly something that might be the case without reaching “recklessness”, for instance. It is another of these offences where there is a defence to prove the purposes of your action. I do not know what the standard of proof is for that. The purposes referred to include work as a journalist, which is not just carrying out work but facilitating it, and the publication of academic research. Why is “facilitating research” not included as well, replicating the first paragraph?

It has been put to me that the proposed offence will place a real burden on small organisations, which will have continuously to investigate the activities of their staff and members to ensure that, through the organisation, material is not posted online that might be construed as having the effect of promoting these services—I am sure that would be a dismissible offence, but even so.

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[Lord Davies of Gower (Con)]

My Lords, my Amendment 62 was also tabled in Committee. Its intent is to disapply data protection laws and regulations for a data subject who has entered the UK illegally or who is a foreign national offender.

The purpose here is, in essence, the same as in Clauses 27 to 31: it is intended to reduce the barriers to data sharing between the relevant law enforcement and immigration services. We feel that data protection legislation should not stand in the way of our ability to protect our borders; it should act as a block on action, not as a shield behind which those who have committed immigration offences can hide. In the same manner as human rights legislation, data protection legislation is not meant to be used to protect those who have broken the law, who have entered illegally or who are trying to prevent their lawful deportation. I will not be pressing this amendment to a Division, obviously, but I hope the Minister has listened to what I have to say.

I understand the purpose of the government amendments in this group, which are removing provisions that are now redundant due to the Data (Use and Access) Act 2025. As such, I take no issue with them.

[Baroness Hamwee (LD)]

My Lords, I was glad to hear the Minister use the phrases “vulnerable group” and “blanket fashion”. I think I have quoted him more or less correctly. The noble Lord, Lord Davies, seeks to alter the Data Protection Act by creating the possibility of the Secretary of State making an immigration exception decision. The noble Lord would take out of the list of circumstances to which the Act requires the Secretary of State to have regard all the rights and freedoms of the data subject, including the subject’s convention rights, and the UK’s obligations under the refugee and trafficking conventions. We are not on the same page.

[Lord Hanson of Flint (Lab)]

I am grateful to the noble Baroness and, again, think we are on the same page on this point. As I have indicated already, the key thing about the amendment from the noble Lord, Lord Davies, is that it would disapply data protection rules in, as I was quoted, a blanket fashion for certain groups that include some of the most vulnerable people in our society, such as the victims of trafficking. Therefore, it is too wide, and I ask him not to move it.

However, I am grateful for the noble Lord’s support for the changes in these technical amendments to the legislation, which needs updating since it began its passage in the House of Commons some time ago. I beg to move Amendment 23.