Nationality and Borders Bill

Lord Coaker Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 10th February 2022 Lords Chamber

Moved by

[Lord Coaker]

172B: Clause 67, page 71, line 13, at end insert—
“(1A) This section may not come into force until the Secretary of State has conducted a review of the impact of subsection (1) and laid a copy of the review before Parliament.(1B) A review under subsection (1A) must include, but is not limited to—(a) identification of any parts of the Trafficking Directive which the Secretary of State considers to be incompatible with provisions made by or under this Act;(b) analysis of the costs and benefits of the disapplication of the Trafficking Directive;(c) the impact that the disapplication of the Trafficking Directive is likely to have on the identification, protection, support and access to wider remedies of victims of all forms of slavery in the United Kingdom.”Member’s explanatory statement
This would require the Secretary of State to review the impact of disapplying the EU Trafficking Directive before this section can come into force.

[Lord Coaker (Lab)]

My Lords, my Amendments 172B and Amendment 174A relate to Clause 67.

I say at the outset that I do not want to reopen a debate about Brexit, but I do want to reopen a debate about the practical implications of the UK being outside the EU and how it relates to the protection of children and those who are victims of slavery and trafficking.

The Government actively chose to opt into the trafficking directive in 2011, stating that it would send a powerful message to traffickers. The modern slavery strategy of 2014 stated that opting in showed

“our commitment to working with other countries in Europe to drive up standards across the continent in tackling trafficking.”

Can the Minister say what has happened to that and how the Government are demonstrating those continuing commitments? Why is Clause 67, on disapplying the directive, necessary? What the Committee would like from the Minister—which may be difficult to do now as he may need to refer to others before coming back to us—is to explain which specific provisions of the Bill the Government consider to be incompatible with the directive? The Government have not given any detail on this. Is it victims’ rights or children’s rights? In other words, what difference has it made, what was covered and what is not covered? These answers are necessary for us to make a comparison and see whether there are any gaps which we believe would be important to close.

In the Commons, the Minister said that

“the transition period for this measure finished in January, so in effect it has already been disapplied.”—[Official Report, Commons, Nationality and Borders Bill Committee, 2/11/21; col. 547.]

I hesitate to suggest this, but I certainly would not be able to tell noble Lords exactly which bits have been applied, which have been disapplied and whether it makes any difference. Can the Minister provide clarity on this? Are we disapplying it under this Act, or have the Government already decided that it does not apply? In other words, has it just been abandoned?

My amendment does not prevent the disapplication, but simply asks the Government to complete an impact assessment before this part comes into force—including identifying which parts of the Bill are incompatible and, crucially, what impact this would have on the identification and protection of victims of slavery. The Government may have already conducted an impact assessment but if so, I could not find one. If they have, it would be interesting for the Committee to note that. This is particularly important because a Google search finds all sorts of regulations and legislation which have been passed, presumably to protect victims of slavery and trafficking. So, my amendment is a simple probing amendment to ask the Minister what difference the disapplication has made. How do we know it has not made a difference if we have no information about the difference between what there was and what there is?

I do not intend to commence a huge new debate for this Committee, but I want to use this grouping as an opportunity to highlight the issue of internal trafficking and county lines. The Minister will know that large numbers of children are referred to the national referral mechanism. He will also know that 34% of referrals are British citizens. There is a real problem with slavery and trafficking within the UK. Euphemistically, this is called county lines, and we know what that means. This will be the tip of the iceberg. The Government have set up all sorts of initiatives to try to deal with this, but what I am seeking to do is simply to raise the issue of slavery and trafficking of children—British children—within the UK. How big is the problem, what is its extent and what are we doing to get on top of it? People of this country would be shocked at the numbers of British children being trafficked and enslaved. Often, including in the debate we have had on this Bill, much of the discussion has been about people coming into the country—rightly or wrongly—what the numbers are and what the impact of the new provisions will be.

Although this is a probing amendment, it is nevertheless really important. I am pleased to see that the Home Office Minister, the noble Baroness, Lady Williams, is now in her place. Perhaps these are issues that should be debated elsewhere, but county lines and internal trafficking are important issues and the number of British children in slavery is increasing. It is a growing phenomenon that is a great shock to us all, and we need to do more to tackle it. I beg to move.

[Baroness Ludford (LD)]

My Lords, I would like to lend our support from these Benches to both the amendments of the noble Lord, Lord Coaker. The subject of retained EU law is one on which it is easy to go down a rabbit hole. But at least this is being put in primary legislation instead of being done by the stroke of an executive pen, which is what the noble Lord, Lord Frost—who is, well, I had better not say—who used to be the Brexit Minister, appeared to suggest would happen. So, I suppose we should be grateful for small mercies.

The EU trafficking directive is, in a sense, a classic EU directive. It aims to get common standards as a measure of human rights protection, in order to establish robust provisions to prevent and prosecute the crime of trafficking and to protect, assist and support its victims. But also, the point of trying to get similar standards was to facilitate cross-border co-operation between member states’ law enforcement authorities through police co-operation, exchange of information and best practices, and dialogue between police, judicial and other authorities. Sometimes misunderstood, the whole point of EU harmonisation was to enable things to happen better, not least law enforcement.

I too do not want to rerun the issue of Brexit, but it is hard to see how pulling out of the EU trafficking directive is a Brexit opportunity. It is a lost opportunity to co-operate internationally across European borders with Europol on major crime. I am afraid that major criminals are one of the beneficiaries of Brexit.

It is a great pity that the part of the TCA on security is so thin. Things like the EU trafficking directive deserve a place in it. You can withdraw unilaterally, but that means you do not get the reciprocity of other police forces co-operating when you have criminal perpetrators who come from all over. Of course, we know this is an international crime. The EU directive also enables the pursuit of action in non-EU countries, such as raising awareness, reducing vulnerability, supporting and assisting victims, fighting the root causes of trafficking and supporting third countries in developing appropriate anti-trafficking legislation. That is an action that would rebound to the benefit of EU countries and the UK, if we were to stay plugged in to the EU’s directives. So, I do not see that pulling out is other than a lose-lose situation.

On the other amendment from the noble Lord, Lord Coaker, as has been mentioned—I believe this figure comes from Care UK—in 2020, 34% of all potential victims of modern slavery referred to the NRM were UK nationals. So, the noble Lord, Lord Coaker, is right to focus on that and on the many children involved in county lines drug dealing. We fully support the call for a report on these issues.

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[Lord Stewart of Dirleton (Con)]

I am grateful to my noble friend Lady Williams here: the short answer is to look at the Modern Slavery Act. It can involve coercion, which can be occasioned by way of threats to others or by threat to the individual. It can come in many different forms; it can be emotional or psychological as well as physical. It is a pernicious practice that exists among nationals of this country as much as it does overseas. Perhaps, therefore, it gives an insight into the universal failings of the human character. The short answer—I have detained the Committee for too long—is the advice that I gave, for which I was the conduit for my noble friend Lady Williams.

I was about to expand on the fact that data concerning criminal gangs is operational and held by each police force. Adding reporting requirements for this data would, we submit, require a significant change in the way the Home Office collates and publishes data on crime. Changing this reporting approach would be unnecessary since we already publish data on county lines NRM referrals through the NRM statistics publication.

I hope that goes some way to answering the noble Lord’s important concern over how we identify, go to the defence of and offer protection to children—nationals of this country who are the victims of these gangs. Modern slavery offences committed against children are, as I say, recorded and published by the police, the Crown Prosecution Service and the Ministry of Justice. The Crown Prosecution Service maintains a central record of the number of offences in which a prosecution commenced, including offences charged by way of the Modern Slavery Act 2015. All modern slavery offences committed against children are identified through the child abuse monitoring flag. The Crown Prosecution Service definition of child abuse covers any case where the victim was under 18 years of age at the time of the offence.

I reassure the Committee and the noble Lord that a child’s welfare and best interests are the primary considerations in any decision-making—in this Bill and any other. Local authorities are responsible for safeguarding and promoting the welfare of all children in their area, including child victims of modern slavery. In addition to this statutory support, the Government have rolled out independent child trafficking guardians, who are an additional source of advice and support for potentially trafficked children. These have been rolled out in two-thirds of local authorities across England and Wales. The Government remain committed to rolling them out on a national basis.

Given all this, I respectfully request that the noble Lord withdraws his amendment at this stage.

[Lord Coaker (Lab)]

I thank the Minister for his answer. It was a short debate but an important one. There are couple of things that the noble Lord said in his answer about the EU directive that I think are helpful. It is something I might suggest with respect to the other amendment on county lines.

I think the people who read our debates will be pleased to hear the Minister say that no entitlement will be removed on victim support, protection or identification. I think I have that quote right. That will be helpful because, in the sector certainly, that is what a lot of people have been worried about: that the disapplication of the directive will impact on those aspects. The Minister’s reassurance will be welcome, although, as with everything, we will see how it works out in practice.

It was also interesting that the Minister said that other legislation may be needed to clarify the disapplication of the EU directive in due course—a fabulous phrase. As we move forward, we will see how it goes. Like Clause 67, this is very important. Sometimes, Governments fail to spell out how the disapplication works and what the practical consequences are. So, short debates like this are important.

On county lines and the report, I think that, despite the information being available, the British public have no idea that 34% of the referrals to the national referral mechanism—the body set up to deal specifically with this—are British children. I do not think that people have any idea that it is that high—that is an astonishing figure. Given that 47% of referrals to the NRM are children, this means that a very high proportion of all the people who are referred are British children. So that is the purpose of this.

It is not that the Government are not doing anything. If I had been the Minister, I would have mentioned the co-ordination centre that the Government set up in 2018, which is actually about all of the things that I am talking about: the need for more data, greater co-ordination, greater prioritisation of this work and greater identification of this as a new crime that people have not taken as seriously as they should; the fact that children are moving across county boundaries without being tracked or followed; the lack of statistical sharing between police forces, social services and children’s services; and children ending up on the south coast and coming back to London. All of those sorts of things are what the co-ordination centre was set up to deal with.

All I would say is that the Government, through the Home Office, need to keep their foot on the pedal on this because it is a growing problem. What is happening in our country is an absolute disgrace. Some of the children involved are not even teenagers; they are not even 17 and a half—I was admonished earlier by the noble Lord, Lord Wolfson, for mentioning 12 and 13 year-olds rather than 17 and a half year-olds, which is what he wanted me to say. Some of these children are seven, eight and nine years old. It is a disgrace, which is why I make no apology for bringing this forward in that context. British children are being enslaved and trafficked within our shores. I know that this is a priority for the Government and for all of us, and this has given me the opportunity to raise it, so that the people of this country can hear how bad the situation is and what we are seeking to do to try to address it. I beg leave to withdraw the amendment.

Amendment 172B withdrawn.

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[Lord Coaker (Lab)]

I will add my voice of support to my noble friend Lady Ritchie. It is good to have the perspective that she brings to this Committee. Our institutional memory in Parliament, in this place and the other place, with respect to Ireland is not as great as it was. It is a perspective that needs to be brought here more often, so this is an important little debate. I think the noble Viscount, Lord Brookeborough, will agree.

I say to the Minister that, whatever the rights and wrongs of all this—and I agree with what my noble friend said—it plays into the narrative that the Government do not have a grip with respect to Ireland. The consequences of that, as the noble Baroness, Lady Suttie, pointed out, are absolutely and potentially really difficult. Even if people are non-British or non-Irish, if they have to have an ETA to cross the border, how on earth is that going to work? Practically, at the end of the day, if it is worth having, somebody will have to check it. I know that it does not apply to British and Irish citizens, but suppose, as a British man, I have an American wife or a French girlfriend; we go to Northern Ireland and somebody checks it—with the history of the police and security forces checking documents. The Government have to wake up to this. Unless the Minister can get up and say, “We’re going to sort this and this is what’s going to happen”, it will drift on and on and the consequences will be potentially really difficult.

It is no wonder that the Irish Government and various organisations across the whole of the UK and Ireland are saying that the Government need to get a grip on this. It is ludicrous. I gave an example. The noble Viscount, Lord Brookeborough, will know far better than me. What about somebody who for years has lived a mile across the border, has a mixed marriage in terms of nationality—somebody who is a British or Irish citizen married to an American—and wants to go shopping or to a hotel four miles down the road that happens to be in Northern Ireland? Do they need an ETA?

This is one of those things about which people outside Parliament say, “Do you know what you are doing?” Frankly, this is something that is so serious, and all the time we are looking at it we are trying to resolve it. It is difficult. It raises issues that you do not appreciate. If only you understood how difficult it is. Well, I do understand how difficult it might be, and I also understand this: the border, for reasons that we all know, whether it is drawn in Ireland or down the Irish Sea, has consequences that are enormous for the people of Ireland and for people here.

The Government have to sort this out in a way that commands respect and agreement from all communities. The amendment that my noble friend Lady Ritchie has brought before us is important, but I implore the Government: whatever the rights and wrongs of getting into Shannon Airport, whoever is right about whether it is seen as a back-door way of getting into the UK, et cetera—and I should say that the Irish Government have visa requirements as well, which will influence how people come in, so that may be one of the answers —it just has to be resolved. There has to be more than a ministerial, “We understand the importance of this and the difficulties, and that it needs to be sorted out”. The frank reality is that the time for sorting it out was yesterday, not today or tomorrow. It is about time that the Government got a grip of this, otherwise there will be very serious consequences further down the road.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank noble Lords very much for participating in this short but powerful debate. I thank the noble Baroness, Lady Ritchie of Downpatrick, and second the point of view of the noble Lord, Lord Coaker, that you bring—I said “you” again; I am very sorry—an interesting and unusual perspective to this debate. I thank her for that. In answer to the noble Baroness’s question about the letter to my noble friend Lady Williams of Trafford, the noble Baroness will have a reply in a week that will outline the details she asked for.

The Government are clear: there will continue to be no routine immigration controls on journeys to the UK from within the common travel area, and none whatever on the land border between Ireland and Northern Ireland. That will remain the position when the ETA scheme is introduced.

It may be helpful if I explain that all individuals, other than British and Irish citizens, arriving in the UK, including those crossing the land border into Northern Ireland, already need to enter in line with the UK’s immigration framework. I think this goes some way to answering the point raised by the noble Lord, Lord Coaker, about the hypothetical American wife or French girlfriend. I think it also deals with the point made by my noble friend, Lady Neville-Rolfe. For example, visa nationals are required to obtain a visa for the UK when travelling via Ireland, otherwise they are entering illegally. We are therefore applying the same principle to individuals requiring an ETA who enter the UK via Ireland without one.

The noble Baroness, Lady Ritchie, referenced Article 2 of the protocol. The Government consider that the ETA scheme is compliant, and they will continue to consider their obligations under the protocol with regard to this. I want to reassure the noble Baroness that the process for obtaining an ETA will be quick and light touch. I am told that it will be not dissimilar to acquiring an American ESTA, which I am sure many noble Lords are familiar with. As many people will know, that is very straightforward and easy. Once granted, an ETA will be valid for multiple journeys over an extended period, minimising the burden on those making frequent trips, including those across the Northern Ireland border. I perhaps should have said that I have had considerable experience of crossing that border on numerous occasions.

In terms of the specific questions on the CTA, as far as I am aware, it has nothing to do with Brexit. It predates Brexit does it not? It goes back to 1923 and partition I think, from my dim and distant memory. I am sure I will be corrected if I am wrong. All CTA members are firmly committed to protecting the common travel area. I will reiterate this point: even with the introduction of ETAs, there will be no routine immigration controls on arrivals to the UK from elsewhere in the common travel area—only intelligence-led controls with no immigration controls whatever on the Ireland/Northern Ireland land border. Given the tone of the debate, I hope noble Lords will allow me to keep reiterating that point.

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[Lord Sharpe of Epsom (Con)]

I thank the noble Viscount—sort of. There will be no hard border. As I said, there is not going to be a hard border in Northern Ireland, and within the CTA there is effectively no change.

In answer to the point made by the noble Baroness, Lady Suttie, about enforcement, which was brought up subsequently as well, I have said it three or four times now: there will be no routine border controls on journeys from within the common travel area, which goes some way to answering the Yorkshire example. There will be none at all on the land border between Ireland and Northern Ireland. Everyone entering the UK, regardless of where they enter from—again, as I have said—is required to meet the UK’s immigration framework. In answer to “What’s the point of having it, then?”, anyone entering the UK without an ETA, or any form of immigration permission where required, will be entering illegally and may be subject to enforcement if encountered during intelligence-led operational activity.

[Lord Coaker (Lab)]

I say gently to the Minister that he has to be really careful with language on things such as conforming to immigration policy and the UK border. The historic context of some of the language that he used means that he has to be really careful when talking about moving across borders or even saying that there will not be a border control but talking about complying with UK immigration policies.