Nationality and Borders Bill

Baroness Harman Excerpts

Report stage
Tuesday 7th December 2021 Commons Chamber

[Sir William Cash]

Not only was the Minister not able to, but he did not want to.

This year alone, 26,000 have entered and, unless the legal loopholes are effectively stopped, they will continue to come in a tsunami of numbers next year. The Government have provided a remedy partially in this Bill but not yet regarding the full legal framework of the Human Rights Act, the European convention on human rights, EU retained law and the refugee convention of 1951, as amended with universal application in 1967 by a protocol. On EU retained law alone, I have found on the Government’s website in the National Archives that this amounts to as many as 123 directives and regulations, spelling out masses of laws relating to asylum and immigration that originated in EU law and are now on our statute book, although a few have been revoked.

The official Home Office policy guidance for asylum screening is still essentially based on the same law, and it makes for dismal reading. It is essential that that is changed. At present, an asylum claim must be registered where an individual fears persecution or serious harm of persecution for any given reason on return to their country. How to evaluate a fear varies with every individual and can in many cases be deliberately exaggerated.

To be recognised as a refugee under the UN refugee convention, the claimant can assert that they have a well-founded fear of persecution and be not only unable, but unwilling, to go back to their country of origin or habitual residence. That can be invoked on grounds which include mere political opinions. Furthermore, they can claim that they are within the judicial sphere of “the humanitarian protection policy”, and the discretion as to whether an asylum claim should be accepted is heavily weighted in favour of asylum, even if the claimants do not even use the term “asylum” when they arrive on our shores.

A paper by the highly distinguished former professor of law at Oxford, John Finnis, and Simon Murray explains in graphic terms the law and case law in more than 100 pages of detailed analysis. They conclude that the European Court of Human Rights has wrongly circumvented fundamental principles originated in the European convention on human rights and the 1951 refugee convention. They also argue that, properly interpreted, the UK and other signatory states have no obligation to let in refugees arriving at our borders en masse, have no legal or treaty obligation to accept refuges at all, and have no obligation to provide asylum for dangerous refugees, such as criminals and terrorists.

The European Court, by radical and unwarranted interpretation, has used the article 3 provisions on torture and inhuman treatment and the article 8 provisions on the right to private and family life to extend the ambit of claimants to encourage them to engage in unlawful immigration. That has been done through the formula of so-called living instruments and recent UK judicial rulings that have continuously expanded claimants’ rights within the judicial system. Claimants are granted repetitive appeals that bring the immigration system under intense pressure at monumental expense to the taxpayer, with grave political consequences on the doorstep.

We need to pull the rug from under the traffickers’ feet, save the lives of those who are exploited by them, and protect our own manifesto promises. Despite the Government’s good intentions in aspects of the Bill, we must solve the fundamental problems presented by the human rights legislation and the legal framework of the provisions that I have mentioned. We cannot continue, with unwarranted interpretation and judgments by the judiciary, to allow illegal immigration.

I seek robust assurances today from the Government to resolve the matter by legislation, and I will press my amendment unless I get them. We cannot go on kicking the can down the yellow brick road. The journey has begun, but the question is where it ends. The yellow brick road is not only in disrepair, as it was in “The Wizard of Oz”, but littered with political precipices.

[Ms Harriet Harman (Camberwell and Peckham) (Lab)]

I rise to speak to amendments 96 to 100 and 102, which stand in my name and those of other hon. Members. They arise from the legislative scrutiny of the Bill by the Joint Committee on Human Rights.

I remind hon. Members that the Joint Committee is a cross-party Committee with half its members from the House of Commons and half from the House of Lords. We undertake legislative scrutiny of all Bills for their human rights implications. We have taken evidence on the Bill from many people—including the Minister, for whose evidence we are grateful—and we are advised by our own legal experts.

In our report, which we published on 1 December, we concluded that the proposed new measures to criminalise those who enter the UK without a visa or without leave will breach human rights law and the refugee convention; our amendment 102 would deal with that. We also concluded that there should be no immunity from prosecution if criminal offences are committed by border officials, particularly where they lead to loss of life; our amendment 100 would deal with that. I hope that the Government will accept both amendments.

Our amendments 96 to 99 would deal with the major issues relating to pushbacks. The Bill provides greater powers for Border Force to “board, divert and detain” vessels. The Government acknowledge that crossings are perilous; this debate takes place in the shadow of the 27 people who drowned in the channel. The Minister was clear in his evidence to the Joint Committee that he does not want Government action to be the cause of yet more lives lost. Of course not.

Our amendment 97 would circumscribe the new powers to ensure that they could not be used against unseaworthy vessels such as dinghies. Our amendment 98 would ensure that they could not

“be used in a manner…that could endanger life at sea.”

Our amendment 96 would ensure that they could be used only in a way that complies with international maritime law, which the Government say they want to comply with. The Minister said in evidence to us that that is the Government’s intention and that they would make that intention clear in operational directions—but if the power is in the Bill, so should the protections be.

Given the Government’s intention, what reason could they possibly have to oppose the amendments? The Government have a big majority and can whip to vote them down, but the amendments have been tabled by a cross-party Committee of both Houses, they have been expertly drafted by our legal counsel, and they represent what the Government say is their intention.

The Minister is new and enthusiastic in his role. He was very forthcoming in his evidence to our Committee, and he and I have spoken about the subject privately, for which I am grateful. I offer him a bit of advice: not to be the Minister who votes our amendments down just because he can, not to be the Minister who makes his Back Benchers vote against ensuring that lives are not endangered—that is not the right thing for him to do—and not to be the Minister who gives new powers to Border Force that cost lives at sea.

Our amendments allow for the new powers, but make them compliant with international law and make them safe. The Government have no reason to oppose the amendments, so I hope that the Minister will say to his colleagues and his civil servants that he wants to reflect on them because he does not want to stand in the way of putting the Government’s intentions on the face of the Bill. If the Government do oppose the amendments, we will seek to press amendment 98 to a Division, but I hope that that will not be necessary.