Nationality and Borders Bill

Baroness Hamwee Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[A noble Lord]

Hear, hear.

[Baroness Hamwee (LD)]

My Lords, I do not want to sound churlish at all by asking this question. The “Hear, hears” were probably not as loud as they might have been for Hansard to pick them up; I hope that it does. My question will display my lack of grip of the EU settled status scheme. The Minister said that the Immigration Rules will be changed at the next appropriate opportunity. Am I right in thinking that 29 March is a significant date for those with pre-settled status? As I said, I have a lack of grip of this and an even greater lack of grip in pulling the bits together in my head but, if it is a significant date, then it is a significant question to ask whether the change will be made before 29 March.

[Baroness Williams of Trafford (Con)]

I do not have the exact detail on the date. I understand her point about 29 March being a significant date; noble Lords will all be informed in due course of when the changes will come about and I will let the noble Baroness know.

[Baroness Hamwee (LD)]

My Lords, just to follow that up, the Minister will understand that I am concerned that some people may fail to qualify because the rules are not changed by that date, so I wonder whether she could come back to us well before then.

[Baroness Williams of Trafford (Con)]

I will of course do that.

--- Later in debate ---

Moved by

[Baroness Hamwee]

35: After Clause 10, insert the following new Clause—
“European Convention on Nationality
Her Majesty’s Government must within six months of this Act coming into force ratify the European Convention on Nationality 1997.”

[Baroness Hamwee (LD)]

My Lords, this might scramble our brains a little less than the last amendment. Amendment 35 would require the Government to ratify the 1997 European Convention on Nationality. This is a Council of Europe treaty, signed, obviously, in 1997, originally by 15 countries. It now has 29 signatories and 21 ratifications. The UK has not followed through on it. In 2002, the then Labour Government said that they planned to ratify it “in due course”, but “due course” has apparently not yet arrived.

The convention sets out the principles to which each country’s nationality laws should conform. The key principles are that everyone has the right to a nationality; statelessness should be avoided; no one should be arbitrarily deprived of his or her nationality; and neither marriage nor the end of a marriage, nor a spouse changing their nationality, should change someone’s nationality. The key part relates to the deprivation of citizenship, preventing states making people stateless unless their citizenship was obtained through fraud, false information or concealment.

The convention sets the bar for deprivation at acts that are seriously prejudicial to the vital interests of the state. This was deliberately mirrored in our legislation in 2002, but with the test being lowered in 2006 to cases where the Home Secretary is satisfied that it is conducive to the public good to order a deprivation. Does the UK believe that, as part of a global community, it would be good to be part of a worldwide group of countries in its approach to nationality? Do we want to be an outlier? I beg to move.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, I thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Coaker, for their brief and succinct points in speaking to the amendment.

British citizenship affords benefits and privileges; the vast majority of us enjoy the freedom that they bring, while of course respecting the rights of others and the rule of law, but there are high-harm individuals who do not share our values. The noble Lord, Lord Coaker, is right that no Government since 1997, including the coalition Government of 2010-15, have ratified the convention, and he is right that we are not going to. The convention does not address the modern threat from global terrorism, among other things, and I would add that Spain, Belgium and Switzerland have not signed it either, perhaps for the same reasons.

The convention on nationality is at odds with domestic law. The Government do not consider it right that our sovereign powers to deprive a person of citizenship should be constrained by signing the convention, as the amendment would oblige us to do. That would severely limit the ability of the Home Secretary to make a deprivation decision in relation to high-harm individuals and those who pose a threat to public safety. Sadly, we have seen too often the effect of terrorist attacks on our way of life and the impact of serious organised crime on the vulnerable. It cannot be right that the Government are not able to use all the powers at their disposal to deal with today’s threats to our way of life.

It is the Government’s duty to keep the public safe and we do not make any apology for seeking to do so. I hope that, with that, the noble Baroness will withdraw her amendment.

[Baroness Hamwee (LD)]

My Lords, I shall be brief because I regard this amendment as an amuse-bouche, if you like, before the very substantial groups to come. I am sure the Minister recognised that this was a probing amendment, as I was asked to find out what the Government’s view was. I think that together we have fulfilled that task. I beg leave to withdraw the amendment.

Amendment 35 withdrawn.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I will take that as an invitation. Thank you very much indeed. I will try not to be a nightmare.

[Baroness Hamwee (LD)]

I am sorry to disappoint the noble Baroness, Lady Chakrabarti. I thank those who have been complimentary about this amendment and make it clear that it is a team effort on our part. I really did not expect it to provoke such debate, but the thoughts that are teeming round people’s minds are bound to burst out at some point.

I want to ask about Amendment 129, and I will return the compliment to the noble Lord, Lord Coaker. It makes an immensely important point but reading it, I wondered whether there was not already an offence—an inchoate offence, possibly, under the existing immigration legislation, or possibly even conspiracy. I do not want to anticipate Clause 40, but are there any problems in using Sections 25 and 25A of the Immigration Act 1971?

[Lord Dubs (Lab)]

My Lords, I shall comment briefly on the discussion we have been having. Why is it young men? I talked to some of the Afghans who got to Calais—this was before the Taliban took over Afghanistan completely—and they said to me that the Taliban were trying to recruit young men into their fighting forces, so the family clubbed together to help them escape, because they were the ones who, at that time, were most vulnerable. Today, it may be that the women in Afghanistan who are more vulnerable, except that they cannot find their way out. But that is one of the reasons why more young men than young women have fled. Indeed, if one looks at the people who got to northern France, quite a few of them have connections with this country, and quite a few are seeking to establish family reunion. That is an argument why we should be able to provide safe and legal routes for people from northern France to come here: so they can achieve family reunion. We should recognise what they have fled.

My noble friend Lord Coaker described the terrible conditions. My comments are going to go a bit wide of the amendment, but I hope that your Lordships will allow me to continue. I think that if we actually explained to people in this country what it is that people are fleeing from—the awful circumstances, the terrifying persecution, war, people being killed in front of them, and so on—they would be much more sympathetic to refugees coming.

The majority of the refugees who reach France claim asylum in France. A small proportion of those claim asylum here—if they can manage to get to this country. In relation to the number of refugees in the world, we are talking about rather small numbers, but there are some very important points of principle, because we are talking about people who are very vulnerable. That is why I am keen on Amendment 36 and I do not agree with the noble Lord, Lord Green.

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

I would like to say a word in support of the spirit of these amendments. Specifically, I would like to speak in support of Amendments 37, 38 and 42, in the name of the noble Baroness, Lady McIntosh, introduced brilliantly by the conscience of the House, the noble Lord, Lord Griffiths. Yet, my heart is not in this game. This is what Americans call “putting lipstick on a pig”—it is still a pig.

The only element of this group which I can whole- heartedly support is that Clause 11 should not stand part of the Bill. Our Constitution Committee gave us a choice: it said that we should either remove or redraft Clause 11. I understand what all these redrafting amendments are trying to do, but it is not a good idea. This is not a case for “death by a thousand cuts”; it is a case for a “short sharp shock”. We need to take Clause 11 out of the Bill.

Why? Because the refugee convention matters; it is an important plank in the international legal order. Clause 11 flies directly in the face of the refugee convention, because it creates two classes of refugees: one with convention rights, and one without convention rights. The charge that it is a breach of the convention is put authoritatively not only by our Law Society and the Law Society of Scotland, but by UNHCR in its 72-page memorandum. That is a pretty authoritative source; indeed, it is the authoritative source. When we set up the refugee convention, we asked UNHCR to be its guardian, to supervise its application, and to report to the Secretary-General on laws on refugees in the signatory states. Therefore, it was not interfering, but doing the job which we, when we wrote the convention, asked it to do. I find it a shaming thought that its report on this Bill will have been seen by all 147 signatory states.

Why is UNHCR so sure that the Bill undermines the convention? Clause 11 is the heart of the matter. UNHCR believes that creating a two-tier system for handling asylum seekers—one class legitimate, one illegitimate—conflicts with the simple definition of a refugee in Article 1 of the convention. A refugee, says the convention, is someone who,

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”.

That is all: he is outside his country of origin. The definition says nothing about any requirement to seek asylum in a particular place, and nothing about regular or irregular routes; it contains no suggestion that he is out of order if he does not seek asylum in the first safe country—there is no such requirement anywhere in international law.

A refugee is a refugee is a refugee, and must be treated as such, according to the provisions of the convention, however he got there. That is what the convention says and that is what we have believed down the years. Stretching the meaning of Article 31, as the Government seek to do, cannot change or qualify what Article 1 says, or add something that it does not contain. I have set out the definition of a refugee. There are no two categories; the definition is very simple.

I am no lawyer, and here I am surrounded by eminent, terrifying legal expertise—even including the noble and learned Lord, Lord Clarke of Nottingham; as his former private secretary, I am horrified to see him there—but the definition of a refugee, and of our sin in this Bill, from the UNHCR and the law societies, must be right, because I cannot see how 147 countries would have signed up to the convention if they had thought it meant what the Government now say it means. Four in every five refugees are in developing countries adjacent to their country of citizenship. Would host countries have agreed that guests should never move on, and that they should be required to apply for asylum only in their first host country? Would the developing world have agreed that the developed world could wash its hands of the problem of looking after refugees because they were going to have to stay in the first safe country they reached on fleeing over a frontier? I do not think so. It plainly was not what those who signed up to the convention thought it meant, and the attempt to have an expansive reading of Article 31 and so change the meaning of the convention as a whole, in particular Article 1, looks quite a legal stretch. I agree with our Constitution Committee, the law societies and, importantly, the UNHCR.

I feel for the Minister, because the case she is asked to make on the legal position and the convention seems as eccentric and unconvincing as the claim of the noble Lord, Lord Frost, that you can extinguish the role of the CJEU in Northern Ireland by using Article 16 of the Northern Ireland protocol. I will stay away from the law—this is a rash foray—but I will stick with the UNHCR, the law societies and the conventional reading of the convention, which is how 146 countries still read it, and say that we really need to get rid of Clause 11.

[Baroness Hamwee (LD)]

My Lords, Clause 11 is the most objectionable clause in this whole objectionable Bill. It has to go, and not just because of what the convention says, our having signed and supported it and so on. It is not just because there is a convention but because the convention is right. However, we have to pick at the Bill. We will have the debate that the noble Lord, Lord Kerr, has started us off on so well on Report, but this is our opportunity to see whether there is any give in the Government’s position and whether there is anything we can, quite bluntly, take apart on Report in a way we have not yet thought of.

My noble friend Lord Paddick, the noble Lords, Lord Rosser and Lord Blunkett, and the right reverend Prelate the Bishop of Durham have indicated their objection to the clause standing part. Had we been able, under the procedures of this House, to add more than four names, I think there would have been a very long list.

Nationality and Borders Bill

Baroness Hamwee Excerpts

Lords Hansard - Part 2 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[Lord Hylton (CB)]

My Lords, in very few words I would like to welcome and support Amendment 40, moved by the noble Baroness, Lady Lister. I do so from the experience of asylum and immigration Bills over the last 20 or 30 years, and for the reason that what used to be known as the Medical Foundation, and is now called simply Freedom from Torture, has repeatedly pointed out the necessary delay before people who pass through traumatic experiences are willing to reveal what has happened to them. To do so, they need relationships of trust and confidence with those with whom they are dealing. So if, perchance, Clause 11 survives in some form or other, I hope that the principles of the noble Baroness’s amendment will be somehow incorporated.

[Baroness Hamwee (LD)]

My Lords, this will not be the last time we talk about the need for a trauma-informed approach. I think the expression “necessary delay”, used by the noble Lord, Lord Hylton, is very useful and applies much better to this situation than “without delay”, which is what we are faced with.

Even without the background and experiences referred to in this amendment, I cannot imagine undertaking the sort of journey that most people fleeing from the situations they are in will have undertaken. Any asylum seeker will be in a pretty awful state. Many will be anxious about authority figures. It is incumbent on us to ensure that they are not retraumatised. We should not require them to present a coherent explanation and make a claim so quickly.

The noble Lord, Lord Hylton, talked about the possible survival of Clause 11. I would add Clause 36 to that. I do not think this provision can be read without looking at Clause 36, which deals with Article 31 of the convention. Clause 36(2) says:

“A refugee is not to be taken to have presented themselves without delay”—


“presented themselves” is the phrase used in Clause 11—

“unless … they made a claim for asylum as soon as reasonably practicable after their arrival in the United Kingdom.”

I do not think it is necessary to read the whole clause.

I hope the Minister can explain how, in practical terms, given the life experiences that we are suggesting, “present” and “make a claim” relate to one another. Does making a claim

“as soon as reasonably practicable”

mean presenting the substance of a claim? If I read these two clauses correctly, we now have “presenting oneself” and “making a claim”. Failure, under Clause 11, to present not just oneself but one’s claim takes one straight into the territory of late evidence and all the horrors of criminality and second-class status.

[Baroness Ludford (LD)]

My Lords, I will speak very briefly. The remarks by the noble Baroness, Lady Neuberger, made me reflect. She was talking about how it takes a year, 18 months or two years for the people whom she has met in the course of her admirable-sounding charity, to be able to fully open up and explain themselves. This makes me think how similar this is to grief. For asylum seekers who have been forced to flee everything that is familiar to them—their home, country, family and links—and arrive in a strange place, this is a form of grief and bereavement.

I am not the only person in this Chamber who has suffered a relatively recent bereavement. I would not say that I have fully recovered after a year, 18 months, two years—even two and a half years. Indeed, I never will be. Given the disorientation and the inability to fully function, a year, 18 months or two years is not wide of the mark for how long you need to get your act together to handle an asylum claim.

--- Later in debate ---

[Baroness Lister of Burtersett (Lab)]

I thank noble Lords very much for their support for this amendment—their willingness to apply some lipstick to the pig that I think we would all like to be rid of. Some very powerful speeches made the case very strongly for why the groups which are listed may well have good reasons for delay. I take the point that any asylum seeker is, by definition, likely to be vulnerable, but we are talking here about those who have particular vulnerabilities.

I thank the Minister for giving more of a sense of what will happen. It is late and I need to read what she said, but I think that the powerful speeches from noble Lords and the Minister’s response justified our taking this as a separate amendment. As I have said, it was not interrogated in the Commons; this has given us a chance to do that.

I thank the Minister for saying that she will look into the statistics—it was I, in fact, who raised it; I think Women for Refugee Women would value having whatever statistics are available. However, just last week, the British Red Cross produced research suggesting that, for all the better training and guidance, women asylum seekers are still treated very badly, with a lack of gender sensitivity and trauma sensitivity. I would encourage the Minister to read this research, think about it and see what more needs to be done.

[Baroness Hamwee (LD)]

I apologise—I was not quick enough to my feet. I wanted to get in before the noble Baroness withdrew her amendment to ask the Minister if she might be able, after today if not tonight, to answer my question about how Clauses 11 and 36 work together. That could inform our debate when we get to that later clause. Again, I apologise to the noble Baroness.

[Baroness Lister of Burtersett (Lab)]

There is no need—I am glad that the noble Baroness said that. I had made a note to mention it and then, of course, completely forgot or could not read my handwriting, or both. Anyway, it is late, and I realise that people want to get on. I beg leave to withdraw the amendment.

Data Protection: Immigration Exemption

Baroness Hamwee Excerpts

Monday 31st January 2022 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, it is disappointing that the procedures of your Lordships’ House effectively precluded us from voting on this SI. When we debated the draft in Grand Committee, we said that we would table a regret Motion but the Government were, of course, aware of the 31 January deadline for producing a measure in response to the Court of Appeal and apparently there was no time for a regret Motion and the usual channels arranged for this take-note Motion.

The Government are obviously proper in complying with the court order in the timing, if not the content, but Parliament should have seen the draft SI earlier, had an opportunity not only to scrutinise it but to debate what it took from that scrutiny and to vote on it. I have drawn this to the attention of the chair of the Secondary Legislation Scrutiny Committee, given that committee’s and the Delegated Powers and Regulatory Reform Committee’s focus at the moment on procedures.

We are all aware of the deficiencies when we deal with secondary legislation. We knew that we would not win a vote in the Chamber because the Labour spokesman in Grand Committee supported the regulations, although we were grateful that he agreed with much of what we said during that debate. We wanted again to put our opposition on record. I thank the Minister for her explanation of the SI during that debate and I will try not to repeat too much of what was said then but will focus on the Minister’s remarks.

The Court of Appeal required the Government to amend the Data Protection Act to remedy its incompatibility with retained EU law so that it satisfies requirements of Article 23(2) of the UK GDPR. The declaration was suspended until today to provide a reasonable time to do so. That judgment was, I think, in October so they have had plenty of time. Although this is an SI amending the Act, it does not achieve that objective. The Secretary of State must have regard under the SI to the “immigration exemption policy document” and a draft IEPD was published at the same time as the draft SI.

That policy document can be amended. It can be replaced. It is not primary legislation. It is not secondary legislation. It is not legislation at all. It is not even unamendable legislation—secondary legislation cannot be amended. It is not a “legislative measure” within the terms of Article 23(2) which the Court of Appeal described as “remarkably specific”. It is not “part and parcel” of the legislation. It is not even a code of practice or a codification of safeguards; it is simply a policy document. Parliament cannot carry out a scrutiny function in which the outcome may, in theory, be changed even if we know the realities of dealing with secondary legislation. Parliament can play no meaningful part.

In Grand Committee, I asked the Minister how the policy document builds on previous arrangements, as it appears simply to repeat existing safeguards, and also for details of the Government’s consultation with interested parties and how the issues raised in consultation have been dealt with. I am grateful to her for the letter I received this afternoon, by email, in response to this—she said she would let me have the detail if it was not data protected. I am glad to note that some points were taken on board—but not all, quite clearly, because those with whom she consulted were those who brought the case to court. She said that

“the Department published the IEPD in draft form alongside the draft Regulations on the 10th December … enabling stakeholders the opportunity to consider its contents and to comment accordingly.”

Given that this policy document is central to the arrangements, I am surprised that not publishing it could ever have been thought to be an option.

In response to my question in Grand Committee, as to how one should challenge the Home Office if one does not know what it knows, or thinks it knows, to rectify errors—how would you rectify errors if you do not know that there are errors?—the Minister said that the exemption did not restrict the right to seek rectification of inaccurate data. That does not answer the question; it merely makes that question even more important. She also said that the exemption could not be used to prevent a person establishing a legal claim—which also begs the question.

It is not in contention that this data is very significant. Lord Justice Warby said the exemption

“plays a significant role in practice as a brake on access to personal data”—

one’s own data. He referred to Home Office evidence that the exemption was relied on in 59% of responses during the period in question, and that the exemption was available in a wide range of cases. The Minister in Grand Committee made much of how limited its use is and that only the minimum is redacted—only small parts of documents that contain sensitive data that could affect operations. So, I have a request and suggestion that the Home Office, in the current version of the policy document, in paragraph nine, which is a checklist for users—that is, caseworkers—should add to the list that there should be the minimum redaction. That may be implied by other parts of the document, but what caseworkers consider is crucial, and paragraph nine is what they will go to. Can the point that she made, and on which she relied, about the minimum redaction not be spelled out clearly in the checklist? I support my noble friend.

[Lord Clement-Jones (LD)]

My Lords, I want—briefly—to supplement the remarks of my noble friends. As I said in Grand Committee, I commend my noble friend Lady Hamwee for her consistent and determined opposition to this immigration exemption. During the passage of the Bill, we were not able to delete the original provisions, but we are quite clear on these benches that this new SI does not at all reflect the safeguards required by the GDPR and by the Court of Appeal’s decision. As I said in Committee, I can only wonder what kind of advice the Minister has had. How has she been able to convince herself that this SI will not meet the same fate as the previous provisions? My noble friends referred to what Lord Justice Warby had to say, and what needs to be done is extremely clear. I do not think there is any need to repeat what my noble friends have said.

It is utterly clear that the provisions being put in place do not comply with GDPR—particularly with Recital 41, and certainly not in the way Lord Justice Warby interpreted that recital. The Home Office, regardless of the law, is going forward with this new proposal with an IEPD which is simply not good enough in terms of its legislative status. As both my noble friends said, it adds nothing in the way of safeguards which were already there.

The Minister seemed to be saying in Grand Committee the Home Office had taken on board the points made by the Open Rights Group and the3million, but that she would ascertain what those points were. Sadly, I have not received a copy of the Minster’s letter, so I do not know what those points are. I hope the Minister will adumbrate those in her response this evening. It is clear that the Home Office is in great danger of having another successful judicial review against it on these regulations.

Despite our best efforts in Grand Committee, the Minister did not deal with the fundamental issue of the mechanism being used to introduce this form of exemption. We were reminded today in the Commons about what Margaret Thatcher said:

“The first duty of Government is to uphold the law. If it tries to bob and weave and duck around that duty when it’s inconvenient, if Government does that, then so will the governed and then nothing is safe—not home, not liberty, not life itself.”


Wise words. Bobbing and weaving and ducking—is that not precisely what the Government are doing on this issue?

Nationality and Borders Bill

Baroness Hamwee Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 27th January 2022 Lords Chamber

Moved by

[Baroness Hamwee]

14: Clause 7, page 9, line 36, at end insert—
“(1A) In section 1 (acquisition by birth or adoption), in subsection (5)—(a) in paragraph (a), for “minor” substitute “person”, and(b) after paragraph (b), for “that minor shall” substitute “that person or minor (as the case may be) shall”.”Member’s explanatory statement
This amendment seeks to bring British nationality law in line with adoption law in England and Wales. In those nations, an adoption order made by a court may be made where a child has reached the age of 18 but is not yet 19. Yet such an adoption order currently only confers British citizenship automatically where the person adopted is under 18 on the day the order is made.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, I beg to move Amendment 14, in my name and that of the name of the noble Lord, Lord Russell of Liverpool, and will speak to Amendments 15, 16, 19, 20, 23 and 24 in this group. The noble Lord apologises to the Committee—he is unwell and had really wished to be here—but I hope that the discussion this afternoon will not be an end of the matter. He and I are keen to rectify an anomaly of which he became aware through his association with Coram, and it is also a concern of the Immigration Law Practitioners’ Association. There are not a large number of people affected by the point we raise but, as the noble Lord says, that is no reason to ignore a matter of principle. He suggested that we flag this up and that we might discuss it with the Minister before Report. We are lucky enough to have a Minister whose diary secretary must go mad when she hears the commitments being made during Committee days.

The issue is another anomaly. British nationality law in England, Wales and Scotland—Northern Ireland is in a different situation—is not in alignment with adoption law. In England and Wales, an adoption order may be made where a child has made an application before reaching the age of 18, as long as they are not yet 19. In Scotland, an adoption order may be made in respect of someone over the age of 18, as long as the application was made when the person was under 18. An adoption order confers British citizenship automatically only when the person adopted is under 18 on the day it was made. As the noble Baroness, Lady Lister, said very forcefully earlier, citizenship is significant: it is about belonging as well as being a technical matter.

Coram gave the example of a young woman who completed her degree at Oxford after her mother had died of cancer, and her maternal aunt, a British citizen resident here, applied to adopt the young woman before she turned 18. The High Court ordered the adoption when she was 18 but not yet 19. I understand—and this must be quite unusual—that the Secretary of State for the Home Department was represented and did not oppose the adoption order, but the relevant section of the British Nationality Act did not operate to confer British citizenship on her, so she was left with student status due to end shortly after her degree was obtained, no basis on which she could continue to enjoy family life in the UK with her adoptive mother, and Immigration Rules making no provision for someone in her position because she did not have 10 years continuous lawful residence in the UK. I have been given other examples but I am sure noble Lords get the point—and I can see from the Minister’s face that she does.

--- Later in debate ---

British overseas citizenship was intended to be a transitional status, and it is expected that many who held that status will have acquired the nationality of the place where they were born or have been living in the 38 years since that legislation was passed. The existing routes to British overseas citizenship are therefore very limited, and we do not intend to create a new route. However, people who hold only BOC and do not have, and have not voluntarily lost, another citizenship or nationality can apply for British citizenship under existing legislation. If a person believes that they missed out on becoming a BOC because of historical unfairness, and as a result they also missed out on being able to become a British citizen because they have no other nationality, and have not done anything that meant they lost a nationality, there is nothing to prevent them applying for that status under this clause. With that, I hope the noble Baroness will not press the amendments.

[Baroness Hamwee (LD)]

My Lords, I agree with the Minister that Clause 7 is positive and I agree with the noble Lord, Lord Rosser, that it must not be just a token. I am obviously disappointed with a good deal of what the Minister had to say. With regard to guidance, which I am glad to hear is proposed, the reference to consultation in our amendment was not accidental. It is important, particularly when we are told that the point of this is to allow flexibility for the Secretary of State, to have the input of stakeholders.

On the point of capacity, if the current discretion is sufficient, I should have said that working on the basis of experience one should put something discretionary into statute, so that everyone is quite clear where they are. As to the transitional nature of British overseas citizenship, there are still people who are affected. The fact that there are very few does not change the position.

With regard to adoption and the need to go through a registration process and for it not just to be automatic, the Minister said that this would be considered on its merits. Just repeating those words indicates how different this is from automatic citizenship, which is part and parcel of whole adoption arrangement. She mentioned the need to be consistent with other nationality provisions. I should say that this amendment would be consistent with the arrangements for adoption that we have in the different parts of the UK. I am particularly disappointed about that, but I hear what she says and I beg leave to withdraw the amendment.

Amendment 14 withdrawn.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, I am also not a lawyer, but we have Amendment 29 in this group and we join the noble Lord, Lord Anderson of Ipswich, in opposing the Question that Clause 9 stand part of the Bill. I accept that Clause 9 is about giving notice, but the amendments in the group go beyond that. The main concerns that this group addresses are the significant increase in the use of the power to deprive British citizens of their citizenship and the new provision of dispensing with the requirement that the Secretary of State requires notice to be given to a person deprived of citizenship.

There have been many detailed and compelling speeches and I do not intend to repeat them, but I will refer to the powerful and personal speech of the noble Baroness, Lady Warsi, about how this provision is affecting some British citizens. This is not going to affect some British citizens, like me, at all, but when you hear her personal recollections of the fear that this clause is generating and about the importance of the family attaché case—reinforced by the noble Baroness, Lady Mobarik—you understand that, although it may not be targeting particular communities within the cohort of British citizens, it is certainly causing distress among certain parts of that cohort.

To answer the question of the noble Lord, Lord Hunt of Wirral, on what we do with those people who wish to do us harm, I say that we prosecute them in the courts. We do not dump them on other countries.

Depriving someone of their citizenship is a very serious step to take and it is being taken with increasing regularity. To then do away with the requirement even to notify the subject is totally unacceptable. How can anyone take any steps to correct or challenge a decision that they know nothing about? The noble Lord, Lord Hunt, talked about how we notify the unnotifiable. Even in the case that he and other noble Lords referred to, which has been in the courts, the individuals were not uncontactable; they were not unnotifiable within the law. As the noble Lord, Lord Anderson of Ipswich, explained, notice could have been served on that individual, but the Home Office chose not to. In the figures he gave about how many times that has stopped the Home Office from serving notice on somebody of deprivation of nationality, the answer was zero. Clause 9 is not only unreasonable but, based on the facts, unnecessary as well.

With the increased use by the Secretary of State of the power to deprive a British citizen of their citizenship, we support Amendment 28 in the name of the noble Lord, Lord Anderson of Ipswich, which says that reviews of the use of the power should be annual and not every three years. We also agree with Amendment 27 in the name of the noble Lord, Lord Moylan, to restrict the circumstances in which someone can be deprived of their British citizenship. My noble friend Lady Hamwee will address our Amendment 29, which removes the power of the Secretary of State to directly deprive a British citizen of their citizenship, requiring an application to be made to a court.

We agree with the principle behind Amendments 32 and 33 in the name of the noble Baroness, Lady Bennett of Manor Castle, that the powers the Secretary of State has to deprive British citizens of their citizenship need to be curtailed and the process made more transparent, but we believe that our Amendment 29 achieves those objectives.

[Baroness Hamwee (LD)]

My Lords, I sense very well that the Committee would like to move on, so I will be much quicker than I had intended to be, but my noble friend Lord Paddick has asked me to speak to Amendment 29. Before I do so, I cannot resist rising to the challenge about my party’s involvement in the 2014 legislation. Perhaps after this debate I will explain to the noble Lord, Lord Moylan, the concessions gained in negotiation at that time in response to the agreement.

Amendment 29 would change the requirement from an assessment of conduciveness, if that is a word, to the public good to necessity in the interests of national security. I thank the Minister for her letter following Second Reading. I could not help thinking that the two examples she gave of where Clause 9 could apply probably were matters of national security. She says so for one example, and the other is where it is assessed to be

“in the interests of the relationship between the UK and another country”.

That must be very close to national security, unless the issue is a very long way away from the other country’s security, which would not be a good basis on which to move forward. The amendment would change the requirement of an order to allow for judicial involvement. These two examples actually show why the matter should go to a judge.

I am editing my speech as I go. Reference has been made to particular communities being especially affected by this provision. I say to the passengers on what, in my neck of the woods, is the 337 bus to Clapham that something does not need to be designed to have a particular effect. If it has that effect, it falls into the area we are concerned about.

Our amendment would also add to the exclusions a person holding British citizenship by birth, and where it would

“affect the best interests of a child in the family”.

That is looking at a fairly wide family. Use of the power would require an annual review, which I think is in the amendment from the noble Lord, Lord Anderson.

[Baroness Chakrabarti (Lab)]

My Lords, I have listened to this debate with enormous care. I have conflicting feelings about it. I do not know whether I am prouder of the quality, logic and humanity of so many of the speeches, particularly from the Benches opposite, or whether the more compelling emotion I feel is anger that the speeches even had to be made. Unsurprisingly, I will speak against Clause 9 standing part of the Bill and in favour of the various amendments attempting to dilute its pernicious effect—and even more in favour of the proposed new clauses that attempt to go further.

I almost feel as if I and the noble Lord, Lord Hunt of Wirral, have listened to two completely different debates. The absolute tour de force by the noble Lord, Lord Moylan, and other speeches on these new clauses were not wide of the mark, because they quite rightly acknowledged that Clause 9 deals just with notice. They conceded that point, but talked about the rot that goes further back in terms of two-tier citizenship and the more precarious version of citizenship that some people are coming to experience because of the increasing use of powers of deprivation, and because these will inevitably have to be used more against some groups within the citizenry than others.

Police, Crime, Sentencing and Courts Bill

Baroness Hamwee Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 10th January 2022 Lords Chamber

[The Lord Bishop of Manchester]

My Lords, I support Amendments 90H, 90J, 95A, 95B and 95C, to which I have added my name. I also signal my support for other amendments in this group which also seek to control more tightly how serious violence reduction orders will operate. I draw your Lordships’ attention to my work on policing ethics, both for Greater Manchester Police and for the National Police Chiefs’ Council, as set out in the register of interests.

As the noble Baroness, Lady Meacher, has indicated, Amendment 90H seeks to ensure that an SVRO can be applied only when a bladed article or offensive weapon is used to commit an offence, not simply when such an item happens to be present and in the possession of the defendant. As the noble Lord, Lord Paddick, has indicated, as presently drafted, the Bill requires no substantive link between the weapon and the offence. An individual could, for example, commit a road traffic offence while driving home from a church picnic, with their used cutlery on the passenger seat next to them, and the prosecution could ask for an SVRO.

I can see that subsection (5) of the proposed new chapter is intended to mitigate that by requiring the court to consider that imposition of the order is necessary to protect the public or the defendant from possible future offences involving such weapons. However, I do not believe it adequately achieves that objective. Asking a court to conject what might happen in the future can all too easily invite decisions taken on discriminatory or flimsy grounds, especially as no court would wish to face public criticism for having failed to apply an SVRO should later violence occur. To legislate for future conjecture requires a robust link to what has already happened. Subsection (3)(a) gives that; it requires that the weapon was used by the defendant in committing the offence in question. Deleting subsection (3)(b), as this amendment seeks to do, would ensure that any order is based on genuine and evidenced risk. To put it bluntly, it would pass my church picnic test.

Amendment 90J, if I may turn to that, seeks to more closely tie the order to the offence by limiting it to the actual person who used or had possession of the weapon, not some putative third party who

“knew or ought to have known”

that they had it. The de facto joint enterprise element in the current drafting of this clause widens the net substantially for who can be affected, and includes people not convicted of knife crime. As the noble Baroness, Lady Meacher, has just said, this is likely to disproportionately affect women and girls, who may well know or suspect that a partner or family member may be carrying a weapon but are far too vulnerable to be able to extricate themselves from a situation where violence involving such weapons may be committed by others.

I understand that the intention may be to provide such vulnerable adults with an excuse to stay away from both people and situations with which violence may be associated, but when I try to put myself in the position of such a person, I cannot really imagine saying to my partner or brother: “Oh, I must not be near you when you have a knife because I might get an SVRO against me.” I think these people are far too vulnerable. I hope I have persuaded your Lordships that Amendment 90J will address this deficit.

Finally, on Amendment 90J, apart from it being grossly unfair by ignoring the impact on vulnerable people, subsection (4) appears to be unworkable. How will the court determine if someone “ought to have known” that some other person had a knife? The amendments in the name of the noble Baroness, Lady Armstrong, tease out this point specifically. I will leave others to speak to them at greater length, but if our own Amendment 90J does not win your Lordships’ support, I would hope that her amendments are more persuasive.

I now turn to Amendments 95A, 95B and 95C on the pilot scheme. In order to understand how SVROs operate in practice, these are entirely welcome. SVROs present a major innovation. There are significant risks of dangers from unexpected consequences—dangers that may outweigh any good that SVROs achieve. If we are to roll them out across the country, we need to have confidence that they are doing the job intended and making things better and not worse. For all the eloquence of our arguments in this House, there is nothing quite like having real, practical experience on the ground to draw on if we are going to get things right. These three amendments, taken together, simply seek to strengthen the pilot; to make it a genuine gathering of all the most relevant evidence, and one that will feed into a proper decision-making process here in Parliament, ahead of SVROs being rolled out across the nation.

In my early days as Bishop of Manchester, we had an idea of how we might make better and more locally informed decisions on where we deployed our vicars. We set up a two-year pilot across about a fifth of our dioceses. Towards the end of that period, we commissioned an independent evaluation by outside experts. We learned a huge amount from the exercise, and, in consequence, we never rolled out the substantive project. We did something different; we did something better. A pilot has to have the capacity to substantially implement the eventual shape of whatever is the final product, otherwise it is simply window dressing.

It is clear from speeches already made here today that there is considerable uncertainty about SVROs. In particular, noble Lords have drawn attention to the danger that they become associated with disproportionality and hence diminish confidence in policing and the courts. None of us wants that. We noted the risk that, rather than prevent criminalisation, they may draw more vulnerable people—especially young women—into the criminal justice system. We have remarked that extensive use of stop and search powers, especially in the absence of specific evidence of intention to offend, has over and again proved counterproductive. These last three amendments cover both the process and the content of the pilot evaluation. They will make for much better decisions on how and when, and perhaps most crucially if, SVROs are rolled out across the nation. I hope the Minister will be minded to accept them or to meet us to find an agreed way forward.

[Baroness Hamwee (LD)]

My Lords, I wonder whether I could ask the Minister a question about her amendments to Clause 141. This takes forward to one point of detail the comments made by other noble Lords about targeting particular groups of possible offenders. Amendments 92 and 93 would extend the guidance from the exercise of functions by the police to, as in proposed new subsection 1A(b),

“guidance about identifying offenders in respect of whom it may be appropriate for … serious violence reduction orders to be made”.

To me, this reads very much like profiling. Can the Minister tell the House whether “identifying offenders” is about identifying particular individuals or a cohort, class or demographic in respect of whom the Government may see SVROs as appropriate?

[The Lord Bishop of Gloucester]

My Lords, I rise to support in particular Amendments 90H, 90J, 90K and 90L. As has been said, they are critical to ensuring that more vulnerable women are not drawn into the criminal justice system through the de facto joint enterprise element of SVROs. Probably like other noble Lords, I was shocked to read the briefing from Agenda, which states that analysis of

“109 joint enterprise cases involving women and girls”

shows that

“there was not a single case in which women and girls had handled a weapon; in 90% of cases they engaged in no violence at all; and in half of the cases they were not even present at the scene of the crime.”

As we have heard, SVROs will mean that women can be given an order based on a single judgment that, on the balance of probability, they “ought to have known” that someone in their company was in possession of a knife. That key phrase, “ought to have known”, is really troubling. Will the Minister consider how this fits in with wider policy, including the female offenders strategy, to limit the number of women serving short sentences and prevent reoffending?

We have a duty to limit unintended consequences. These amendments would do just that.

Nationality and Borders Bill

Baroness Hamwee Excerpts

2nd reading
Wednesday 5th January 2022 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, the Board of Deputies of British Jews quoted from the Torah in its briefing. I am afraid it is not at the front of my mind, but it is the same thought. There have been so many powerful and informed speeches that I decided at about 5.30 pm that I must stop adding namechecks to my notes.

I have often heard from the Dispatch Box the term “professional curiosity”—an encouragement to probe, analyse and avoid the unthoughtful and the knee-jerk. It seems to me that professional curiosity has been lacking both from the underlying policy and this Bill. The noble Lord, Lord Blunkett, mentioned virtue signalling. There certainly seems to have been no attempt to understand the push factors.

I should apply that to myself. How is it that a Bill against which I would readily have voted today has any appeal? Is it that people have had bad encounters with refugees? I think that is unlikely. The reaction of most people who have talked to individuals is often admiring. Is it fear of the other? We are a mongrel nation, as noble Lords have said; I certainly am. Is it an underlying insecurity about housing, the health service, jobs, the cost of living and the economy? Likely, I suspect, and so we should address those.

How is it that the Government’s priority is not to take a leadership role in integration, rather than creating tiers, different levels of protection—“differentials”, as the noble Baroness, Lady Chakrabarti, put it—and the deserving and undeserving? Instead, they make the environment aggressively hostile.

Among the many emails we have received opposing the Bill, I had one from a lady who wrote:

“Although I do not believe that the current Front Bench is racist,”—


I should say that I have just had another email which takes a contrary view, but I am not making that accusation myself—

“it would be naive to imagine that it will always be ‘in the public interest’ for me and my parents to continue enjoying the ‘privilege’ of our British citizenship.”

Let me say that we believe that the noble Lord, Lord Woolley, is in the public interest.

How many British citizens suddenly feel insecure? Another email I had said:

“Clause 9 does not make me feel safer.”


I am sure the writer would be happy for the noble Lord, Lord Anderson, to quote that on a future occasion. It seems we are to assume the worst of asylum seekers, victims of modern slavery and those who missed out on claiming citizenship—those who, in its words, are not the “cash cows” the Home Office expects.

My noble friends Lord Paddick and Lord Oates referred to comparative numbers of applications and refugees accepted in other countries, as did the noble Lords, Lord Rosser and Lord Dubs. The starkest are the numbers being hosted by bordering states and by developing and middle-income countries. Our responsibility is no less because of our geographical position. We should be fair in the international context. Clearly, we cannot take everyone, but we fall well short of our fair share. I do not think that is the same as not controlling borders, and it is not Marxist in any sense. I am reminded that another word that is almost compulsory in this House is “proportionate”. One could apply that here too.

The tone as well as the detail of the Bill are of denial of our role as part of the international community, engaged in a co-operative effort to address a shared issue. As for offshoring, I hope we will not see that, for the sake of individuals and of the host—if that is the right word—country with fewer resources than we have. It feels more like offloading.

It is almost the least of it but requiring visa penalties for unco-operative countries baffles me; it is not my approach to co-operation or partnership. In fact, I have trouble with a lot of the logic. The great majority of family reunion applications, as we have heard, are for women and children to join a family member here. How does that square with government policy to protect women and girls? If a refugee cannot sponsor an application, does this not incentivise dangerous journeys, particularly by women and girls? That is the Australian experience. Smugglers understand the process; that is part of their power. Asylum seekers are unlikely to do so; it is not part of their thinking.

Politicians who admire successful business people should understand that, faced with an obstacle, they find ways around it; they are not deterred. By the way, life sentences, an option under the Modern Slavery Act, have apparently not been used. The Bill, perversely, plays into the smugglers’ business model. It is predicated, as many noble Lords have said, on a substantial increase of safe and legal routes. Apart from it being the right thing to do to increase them, their creation would reduce the market for dangerous crossings. As has been observed, the Home Office impact assessment points to the inherent risks of dangerous crossings. What the Bill is not based on is a trauma-informed approach. That is the clear view of the professionals who have written and spoken about age assessment, which they and we see as a matter of safeguarding. They are very clear that this is not cut and dried scientifically. Personally, I am not surprised that young people who have gone through what they have been through act older than their age.

Concern is expressed about the impact of much of the Bill on children. The right reverend Prelate the Bishop of Durham was the first to mention that issue. Even the clauses righting historical omissions regarding citizenship are overshadowed, and Clause 10 is plain unjust. Citizenship is hugely important; it is about belonging. It is well known that victims of slavery and trafficking, as well as those fleeing persecution, oppression and tyranny, cannot immediately tell the whole or even much of their story. “Late” is a misnomer. The Independent Anti-Slavery Commissioner makes very balanced and powerful comments—to use a neutral term—including on the danger of viewing victims through an immigration lens and ignoring their trauma and exploitation. I cannot, unlike others here, see the Bill as other than a retrograde step back from our world-leading legislation of 2015. What the Minister said about ILR was on the basis of assisting prosecutions. That is important, but it is a complex issue, and it is not the only one, as the noble Lord, Lord McColl, always makes clear.

I can give only a modified welcome to the additional qualification for legal aid, given the shortage of provision in practice—the funding structures and rates, and the refusal of the Legal Aid Agency, as I understand it, to fund expert reports at the application as distinct from the appeal stage. This is part of a wider issue, but it bites here.

There are big legal issues raised by the Bill. Others have touched on compliance with international law and the law of the sea, and I am sure that we will spend time on this in Committee. I find it perverse to use domestic legislation to impose the interpretation of international conventions, although I have to say that it is of a piece with the Government’s announcement of legislation to correct the courts’ judgments in human rights cases. Language can be misleading; an expedited or accelerated process sounds attractive, but so did “detained fast track”, as a term, which the Court of Appeal, rightly, brought to an end.

Like the noble Baroness, Lady Kennedy, I am concerned about the criminalisation that may spill over to individuals and organisations that seek to support asylum seekers. Judging from the support that we have seen for the RNLI, that view is widely shared.

I hope that the Minister will be able to detail what routes there are by which an asylum seeker can come direct from countries from which so many flee—Iran, Iraq, Eritrea, Yemen, Sudan, Vietnam and so on. The Government may tell us about schemes for Afghanis and Syrians, but we know that we would like them to be far more extensive, and we are concerned about the lack of what is happening at the moment. What is being done to create safe and legal routes, and why is there no provision for humanitarian visas? Perhaps we can also hear why the Government, who have relied on the UNHCR to identify those whom they have resettled in the UK, refuse to take on board its analysis. The UNHCR’s critique of the Bill is devastating.

I have had much more time than most speakers, but none of us has had anywhere near enough to make all the points that are to be made on this Bill, which clearly fills so many of us with gloom and anxiety, nor enough time to thank all those who have briefed us and who work on the front line—and, certainly, nowhere near enough to cover what will so affect people’s lives.

--- Later in debate ---

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords who have spoken today in what has been quite a long debate. I know noble Lords will understand if I do not respond to every single point that has been made, but I thought it would be a good idea to summarise, very briefly, what has been talked about today.

I hope I can divide the House into those who think we have gone too far with the Bill and those think we have not gone far enough. There are an elite few here who support the Bill. There is quite a contradictory view on the EU as being either the best thing since sliced bread or, contrarily, as not being regarded by some as a safe area for migrants, but there is also the Groucho Marxism that my noble friend referred to—I will not call it LibDem-ism—which says, “Whatever it is, I’m against it”. I will call out two noble Lords for actually suggesting solutions. One is the noble Lord, Lord Desai, and the other is my noble friend Lord Balfe. Solutions have been in very short supply this afternoon, and although I may not agree with them, they actually suggested solutions.

We are a nation of immigrants—I have said that before at this Dispatch Box—and I am a first-generation immigrant. Immigration has made this country the place that it is today. It rebuilt it after the war and we provided protection for those fleeing persecution, both during the Second World War and in the decades since. What comes to mind is the Ugandan Asians and now, of course, the people from Afghanistan. We have just resettled more than 20,000 people through the vulnerable persons resettlement scheme and we will go on to resettle 20,000 people under the Afghan citizens resettlement scheme.

The other word that has been used quite a lot today, by quite a few noble Lords, is “inhumanity”. The inhumanity I see is the treatment of migrants by criminal gangs: the inhumanity of making your way to our shores being based on your ability to pay those criminals; the inhumanity of the fact that if you are a woman or a girl—women and girls have been mentioned by quite a few noble Lords this afternoon—you are very unlikely to be in one of those boats, because most of the people in them are men or boys; and, finally, the inhumanity of using people as commodities in the grim industry that those criminals engage in. They do not see the people in those boats as human beings at all. That, for me, is the inhumanity of all this, and I do not think noble Lords would actually disagree with those points.

My noble friend Lady Stowell said that illegal migration matters to the people of this country. It does, not because they are racist but because they have a great sense of fairness. We should be careful when we use the word “racist”. The noble Baroness, Lady Hamwee, mentioned an email she received today relating to the Front Bench, and retracted from that accusation. Someone from my background or that of my noble friend Lord Wolfson would never countenance that—and I do not accuse her of asserting that at all.

[Baroness Hamwee (LD)]

I should like to make it clear that my correspondent said that she does not think that the Front Bench is racist.

[Baroness Williams of Trafford (Con)]

I thank the noble Baroness, and I know she would not have made that suggestion.

We are talking today not about the lawful migration which has so enriched our country, but about illegal migration, which only makes it harder for us to do what we all want, which is to protect those in greatest need of our help.

As I said, I cannot touch on every point that was made, but I hope to touch on some of the key issues. To quote my noble friend Lord Wolfson again, we have to start with the basic reality that the current system is not working. We need real, practical solutions, not just another outline of the problems, so I offer particular thanks to noble Lords who have today shared some suggestions of what we can do. Reform is desperately needed, and the Bill will enable us to deliver it.

I turn first to the deprivation of citizenship, because that has been so widely mentioned, including by the noble Lords, Lord Rosser, Lord Paddick, Lord Blunkett, Lord Anderson of Ipswich, Lord Dubs, Lord Kirkhope of Harrogate and Lord Hannay of Chiswick; the noble Baronesses, Lady Fox of Buckley, Lady Chakrabarti, Lady Jones of Moulsecoomb, Lady Lister and Lady Uddin; and my noble friends Lord Balfe and Lady Warsi. I assure the noble Lord, Lord Woolley, that, irrespective of his name—mine also starts with a “W”, so I know where I stand—I listened to his concerns on the clause very carefully. I assure him of the Government’s continuing commitment to righting the wrongs of Windrush. We have been very clear on that, so, to echo what was said explicitly in the other place, the Bill does not widen the reasons for which a person can be deprived of their British citizenship. The change is about the process of notifying the individual.

Picking up on some of the questions asked by the noble Lord, Lord Anderson of Ipswich, in particular, the clause is necessary to ensure that we avoid a situation where we could never deprive a person of their British citizenship just because there is no way of communicating with them, or where to make contact would disclose sensitive intelligence sources, including a last known address—if we even have one. This is vital to protect the security of the UK from those who would wish to do us harm.

Rightly, this power is reserved for those who pose a threat to the UK and those who obtain their citizenship by fraudulent means. Decisions are made following careful consideration of advice from officials and lawyers, and in accordance with international law. It always comes with an appeal right. The Government do not seek to extend deprivation powers—I want to make that absolutely clear. The grounds on which a person can be deprived of their citizenship will remain unchanged. We also do not want to deny a person their statutory right of appeal where we have made a decision to deprive, and the Bill preserves that right. The change is simply intended to ensure that existing powers can be used effectively in all appropriate circumstances and in no way represents a policy change in this important area of work. Instead, the scaremongering that we have seen around this clause from some quarters is unacceptable, irresponsible and highly regrettable.

The noble Lord, Lord Rosser, and the noble Baroness, Lady Jolly, made some thoughtful contributions on the importance of organisations such as the RNLI, and I share their sentiments about them. I want to reassure noble Lords that the Bill does not change the Government’s approach to existing obligations under international maritime law, including that first duty to protect lives at sea. I might say that I am delighted that the RNLI has received additional contributions, because I see the work that it does down in Cornwall. The Government tabled an amendment to the Bill in the Commons on Report to make absolutely clear that organisations such as HM Coastguard and RNLI will be able to continue to rescue those in distress at sea, as they do now.

Perhaps I may move on to differentiation. The noble Baronesses, Lady Chakrabarti, Lady Ludford, Lady Kennedy of the Shaws and Lady Uddin, the noble Lord, Lord Hylton, and the right reverend Prelate the Bishop of Durham spoke about provisions that differentiate between groups of asylum seekers. I know that there is a difference of opinion about these provisions, but I do not make excuses for doing everything possible to deter people from making these dangerous crossings. I should like to provide reassurance that family reunion, which I know is an issue of particular concern, will be permitted for those in group two where refusal would breach our international obligations under Article 8 of the European Convention on Human Rights.

I should also like to pick up specifically on the comment from the noble Baroness, Lady Kennedy, on female judges from Afghanistan. She and I have talked about that and how they will be considered under the new differentiated asylum policy. As she set out, in August we announced the Afghan citizens’ resettlement scheme, one of the most generous schemes in our country’s history, with up to 20,000 people at risk being given a new life in the UK. The scheme will explicitly prioritise those who have assisted the UK’s efforts in Afghanistan and stood up for values such as democracy, women’s rights and freedom of speech or the rule of law. I hope, therefore, that I can assure the noble Baroness on that. The scheme includes women’s rights activists, journalists and prosecutors.

Individuals granted settlement under the ACRS will not be subject to any differential treatment and will be granted indefinite leave to remain in the United Kingdom. That sits alongside our other safe and legal routes, including the UK resettlement scheme and community sponsorship, which I am delighted the right reverend Prelate the Bishop of Chelmsford mentioned, because it is a scheme that I am very keen on and I hope to have more discussions with her on it. Other safe and legal routes include the mandate resettlement scheme, the Afghan relocations and assistance policy and the immigration route for BNO status holders from Hong Kong.

I move on to modern slavery. Many noble Lords, including my noble friend Lord McColl, the noble Lords, Lord Alton of Liverpool, Lord Rooker and Lord Morrow, the noble Baroness, Lady Hollins, and the right reverend Prelate the Bishop of London asked about Part 5, which relates to modern slavery. The Government are totally committed to tackling this terrible crime, one that seeks to exploit and do harm. This requires active prosecution of the modern slavery perpetrators.

Noble Lords asked why we are legislating for modern slavery in this Bill. The fact is that there is an overlap between some individuals who enter the immigration system and the national referral mechanism, so it is right that we make sure that those individuals have their full set of circumstances considered together. We also want to make sure that vulnerable individuals are identified as early as possible so that we can ensure that they have access to the right support.

That is why this Bill makes clear, for the first time in primary legislation, that where a public authority, such as the police, is pursuing an investigation or criminal proceedings, confirmed victims who are co-operating in this activity and need to remain in the UK in order to do so will be granted temporary leave to remain. The legislation also makes it clear that leave will be granted where it is necessary to assist an individual in their recovery from any physical or psychological harm arising from the relevant exploitation, or where it is necessary to enable them to seek compensation in respect of the relevant exploitation. It is right that leave is granted only to those who need it. This is both firm and fair.

Additionally, as part of our ongoing commitment to victims, we will continue to explore opportunities to enhance our support for victims through the criminal justice system through our review of the modern slavery strategy. Having as clear a definition as possible of the relevant eligibility criteria is the best way to give victims the clarity and certainty they need.

I assure noble Lords that we remain in line with our international obligations and will continue to support, via a grant of temporary leave to remain, those who have a need to be in the UK to assist with their recovery from physical and psychological harm caused by their exploitation. All those who receive a positive conclusive grounds decision and are in need of tailored support will receive appropriate individualised support for a minimum of 12 months. We will set out further details in guidance in due course.

I turn to the concerns about the steps we are taking regarding the wording of the reasonable grounds threshold in the Modern Slavery Act 2015. Our purpose here is to ensure that this mirrors our obligation under the Council of Europe Convention on Action against Trafficking in Human Beings. We remain committed to ensuring that the NRM effectively identifies and supports genuine victims to recover.

Lastly, I turn to the specific questions raised by the noble Lord, Lord Rooker, on the recent joint statement of the Independent Anti-slavery Commissioner and the Victims’ Commissioner. I assure him that we are fully considering the issues raised and that we are currently engaging with both commissioners on these important issues.

Police, Crime, Sentencing and Courts Bill

Baroness Hamwee Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 13th December 2021 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I very much hope the Minister can listen to this, because it is obvious that there is a general concern. I will keep my remarks brief because I agree with everything that has been said so far, particularly on the Hobson’s choice that victims are often given: either they hand their telephone over voluntarily or they have it confiscated. That really is an abuse of procedure.

I would like the Minister to answer a question for me: if there is that threat inherent in what the police tell a victim, would any evidence gathered under Clause 36 be inadmissible in court? I rather think it should be. We should remember that government Ministers have been very reluctant to have their electronic devices pored over by the police, and have dropped them or broken them or things like that. This is an intrusive and invasive procedure. It should be done as best as it can be, and at the moment it really is not.

[Baroness Hamwee (LD)]

My Lords, regarding the point made by the noble Lord, Lord Carlile, about explanations, I absolutely support him, as do two of the amendments in this group—Amendment 43, in which “explanation” is used, and Amendment 50, concerning giving notice “orally”. I am sure that noble Lords will understand the significance of that. Many people will take in something which is explained to them face to face and orally in a way which they might not if given a rather formal document to read.

I ask the Minister about the extent of what is meant by “confidential information”. There is a reference to what will become Section 42. As I read it, it is not confidential in the normal meaning of the word, but refers only to journalistic material, legally privileged or business material, as referred to when one follows through the cross-references, and not to personal material. Can she confirm that, because it very much affects what these clauses do? Can she also help the House with the relevance in her Amendment 47, in the proposed new subsection (7C), of the amount of confidential information likely to be stored on the device? Amount is not the same as significance.

[The Lord Bishop of Leeds]

My Lords, especially following the speech by the noble Lord, Lord Carlile, I am conscious that I have no conception of what the world looks like through the eyes of my grandchildren. When I was their age there were three channels on television, which began at 4.40 in the afternoon with “Jackanory”. The world has changed considerably and, although I have tried to keep up with technology, professionally and personally, I am aware that I cannot see the world into which we are moving. We are not ahead of the game.

With the greatest respect, I look around this House and conclude that we are not the generation to be looking ahead and anticipating the world of communication, particularly through phones and so on. I am told by industry experts that what we have now is probably a couple of generations back from what we will have. I have lost track of Elon Musk and all the stuff going on in relation to space travel but, in framing such legislation, are we consulting the younger generations, who are well ahead of the rest of us on technology and communication potential? It is a simple question. I would not want to hand my phone over now, but I am sure that my grandchildren will have stuff on their phones which I would not even begin to understand. We need to be very careful.

Migrants

Baroness Hamwee Excerpts

Thursday 25th November 2021 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, the tragedy was predictable and predicted. I really hope that nothing is off the table, but at the centre of it should be a commitment to and delivery of safe routes, including resettlements, with a good big target for that; expansion of the family reunion rules; humanitarian visas to enable people needing protection to travel safely; recognising, as does the refugee convention, that many asylum seekers have no option other than an irregular journey; and efficient decision-making, not blaming the asylum seekers for clogging up the system.

It distresses me how easily language is adopted. People are not “illegal” and neither is seeking asylum. The narrative is that the channel is full of people who should have known better, should have produced documents—leaving aside whether they are likely to have them—and should have booked a ticket on a regular flight. Are there flights from Iran, Iraq, Syria or Afghanistan? The narrative is also that they should have gone through one of the UNHCR or IOM schemes, which are good but inevitably too small.

We are told by the Home Secretary that 70% of those in the boats are young men who are economic migrants. My understanding is that these young men are often at particular risk or seeking to join family members, or they have travelled because they are more able than others in their family to cope with the appalling conditions in the miles and months on the way. They are not hulking young men. By the time they reach France they are often very skinny—or so I gather from the charities who want donations of small- size jeans.

I also understand that the number crossing the channel by all means in aggregate is broadly as it was. It is not a good number, but there we are. To quote directly from Home Office figures published today:

“In the year ending June 2021, Germany received the highest number of asylum applicants (113,625) in the EU+”—


which is the EU plus the EEA and Switzerland—

“followed by France … When compared with the EU+”—

as the Home Office calls it—

“for the year ending June 2021, the UK received the 4th largest number of applicants … This equates to 8% of the total asylum applicants across the EU+ and UK combined over that period, or the 17th largest intake when measured per head of population.”

We are 17th because so many stay in the countries they travel through or reach on the way, which are closer to their country of origin. Of course, this is not a matter only for the Home Office. There are also issues of climate change and unresolved conflicts, and upstream investment is essential.

I am not sure what the legal basis is for turning back small boats. We are told there is one, and my big question today is to ask the Minister to explain—if I say this is not an exam question, she will understand the reference to yesterday’s debate—the legal basis for turning back small boats.

Those who are so desperate as to pay smugglers are not accessories to the crime, although by being called criminals that is what they are badged as. How about advocating at home the benefits that refugees bring? They bring skills and diversity to our gene pool, which is good, like diversity in most things. Internationally, with France and globally—because we are global Britain, after all—we should be seeking co-operative, constructive partnerships in responding to refugees. I acknowledge that the EU was not notably successful at this when we were a member, but let us look to the future.

What are we doing with policy? The new plan for immigration has drawn such criticism from the UNHCR, to which the Government look to identify the refugees we will take.

I hope that the table will hold everything—everything according to the Prime Minister—and that it will turn into a new drawing board.

Small Boats Incident in the Channel

Baroness Hamwee Excerpts

Thursday 25th November 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, we do not want a child to get on a boat if they can find a trafficker. I assume that is why those children are there: someone, somewhere, hopes they will find a trafficker to bring them to the UK. We have mechanisms for bringing unaccompanied asylum-seeking children here. We are not bound by the European Union now; we are bound by our obligations to the whole world. I know that the House and the noble Lord still refer to the EU, but we are focusing on vulnerability from across the world.

[Baroness Hamwee (LD)]

My Lords, the Home Secretary’s Statement referred to the work of the National Crime Agency and using it to “take down” smugglers. Can the noble Baroness give the House any information about smugglers based in the UK, as distinct from those based in France or elsewhere in northern Europe, which is the impression we have of where they are based? Secondly, on the issue that people should claim asylum in the first safe country they reach, can the noble Baroness confirm that “should” is government policy, rather than international law?

[Baroness Williams of Trafford (Con)]

Smugglers have a fairly international reach and are not necessarily based in the UK. Quite often, they are based in eastern Europe or the Balkans and they ply their trade across the world. Where they are based is almost irrelevant; their business model is based on people smuggling and multiple types of crime. Claiming asylum in the first safe country is a long-established international policy.

Police, Crime, Sentencing and Courts Bill

Baroness Hamwee Excerpts

Committee stage
Wednesday 24th November 2021 Lords Chamber

The Government have introduced a series of measures which seriously call into question civil liberties in this country, in particular the right to protest. They have done so at a massively late stage in a Bill, and begun the discussion at midnight. If the Government had any sense of decorum, or wished to show some respect to this House and, more to the point, to the people of this country—who may demand action but also demand that the people who govern them act with care and consideration—they would let their legislators properly scrutinise the things that they put before them. We have not been given that chance. The Government should withdraw these amendments, and if they insist on bringing them back, doing so in a form that can be properly debated by both Houses of Parliament.

[Baroness Hamwee (LD)]

My Lords, the noble Baroness, Lady Jones, gave some well-deserved compliments to my noble friend Lord Paddick, but he was not trying to improve these proposed clauses. He was trying to show why they should not go forward, and he did.

There are many points that puzzle me, but I will ask about two. First, on prevention orders, is the phrase “causing or contributing to” used elsewhere in legislation? Certainly, “contributing” is a vaguer term than I have come across elsewhere. Would it extend to financial contributions? Is a response to a crowdfunding appeal caught by it?

The second point, to which my noble friend Lord Beith referred, relates to Amendment 319J. It refers a person who

“intentionally obstructs a constable in the exercise of the constable’s powers”.

How does that fit with the advice given after Sarah Everard’s abduction and murder about requiring another constable to be called, flagging down a bus, and so on? I simply do not understand the policy.