Illegal Migration Bill

Lord Coaker Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Lord Paddick (LD)]

My Lords, I am very grateful to my noble friend Lord Purvis of Tweed for his devastating critique of the government reasoning behind the measures in this Bill. As he said, the measures could have serious consequences for women and girls who have been trafficked, and he provided some examples of the sorts of numbers that might be involved. The facts presented by my noble friend appeared to show clearly that the system of referrals to the national referral mechanism is not being abused. As he said, much of the increase resulted from claims from those who were already legally in the United Kingdom.

I am very grateful—going back to Monday—to the noble and learned Lord, Lord Bellamy, for indicating something of the thinking behind this Bill as far as the Government are concerned. He said:

“All I am saying is that one should have this power; I am not necessarily saying the circumstances in which one should exercise it”.—[Official Report, 5/6/23; col. 1229.]


I am beginning to wonder whether this is a sort of remake of “The Wizard of Oz”, with these very scary things being put up front with very little behind them. In reply to what my noble friend said about the vulnerable women and girls who could be detained and then deported from this country, the Minister said it might not happen because, as he said, all the Government are saying is that the Government should have the power to do that, but they are not necessarily going to use it.

In relation to Schedule 1—the safe countries—many noble Lords have given graphic examples of why countries do not belong on a safe list. I have to say: what is the point of the list? As the noble and learned Lord, Lord Bellamy, said on Monday, in response to the noble Lord, Lord Cashman, who gave a particular example of a gay man being sent back to a hostile country:

“Secondly, and in practice, this is all predicated on the country being willing to accept them. At the moment, the only agreement we have is with Rwanda. There may well be others. I hesitate to give any commitment but it seems, if I may say so, most unlikely that the fears of the noble Lord are well founded. It is most unlikely that these postulated circumstances will arise in practice”.—[Official Report, 5/6/23; col. 1234.]


Well, if the Government are saying that each individual case will be considered on its merits, and if a country that is on the list is found to be not safe for that individual, what is the point of the list? What is the point if there is only one country—or potentially two countries—on the list to which the Government can return people? Is this just to try to scare the horses, with no substance behind it? That is increasingly what this Bill looks like.

[Lord Coaker (Lab)]

My Lords, I start, as other noble Lords have done, by thanking the noble Lord, Lord Purvis, for his introduction, the quality of his speech and the comments that he made, which deserve a full answer, and I thank all noble Lords for the detailed and important contributions that they have made.

In that light, I ask the Minister whether he will take back to Downing Street the fact that we do not need to read on the front page of the Daily Telegraph that the PM is set to overrule the Lords on boats Bills. The quality of the contributions that have been made in today’s debate show the importance of the consideration in detail of the legislation. Indeed, the Minister will know, as has been reiterated through the usual channels, that it is not the view held by every single noble Lord that the Bill should be blocked; indeed, we on the Front Bench of His Majesty’s Opposition have said categorically that we will not block the Bill. However, we will not be intimidated by having people, even the Prime Minister, attempting to intimidate us into not properly scrutinising, in a detailed and forensic way, the operation of the Bill.

We can see from the way in which noble Lords have put forward various points and considerations today that there are real questions to answer. I do not believe that the Government Front Bench here or the usual channels did that; to be frank, I think they were probably taken by surprise by it as well. But it is important that we in this House recognise that we have a role to play, which is to revise and improve legislation. The Government are then perfectly entitled to turn around and say, “We totally disagree and we’re not going to take any notice”, but we do not need to be lectured on how we should not attempt to revise it in Committee or on Report. That is an important point to make.

The other point to make as we consider this is for us all to wish the noble Lord, Lord Murray, well in his attempt to get the impact assessment out of the Home Office well before Report. It is too soon for me to ask him in a nasty way whether he has yet had any success, but even if I do not return to this throughout the Committee, I am sure a number of other Members will ask him how it is going—so I will start the process by asking the noble Lord how it is going with regard to getting the impact assessment out.

I will say, without repeating many of the points that have been made, that my noble friend Lady Chakrabarti summed up a point that has been reinforced by many noble Lords. At their heart, Clauses 5 and 6 and Schedule 1 give effect to Clause 2. In other words, the Government require a blanket ban on asylum claims and therefore require, in a blanket way, people to be removed from the country. I have said time and again that that removal, as we have heard from many noble Lords, is without any real understanding of where to or what the consequences will be. I ask again: is it a fact that the Government believe that the threat of deterrence overcomes or supersedes individual human rights? That goes to the heart of what we are debating, and is a point that the noble Lords, Lord Carlile, Lord Kerr and Lord Hannay, have made on numerous occasions. Is it the case that the Government are prepared to accept that, under Clauses 5 and 6 and Schedule 1, individuals may well be at risk of persecution or may have a well-founded asylum claim but, because they have arrived irregularly, that does not matter and they are going to be sent to wherever? Is that the case or not? We could do with knowing the answer to that.

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[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, with permission, I will first respond to the first point from the noble Lord, Lord Coaker, and confirm that the Government’s Front Bench was as surprised by the report in the Daily Telegraph as everybody else.

[Lord Coaker (Lab)]

Can I just confirm that the Minister means the Lords Front Bench?

[Lord Bellamy (Con)]

Yes, the Lords Front Bench—this Front Bench. I cannot speak for other colleagues, but I can assure the Committee that no one is attempting to intimidate this House. As I understand it, the Prime Minister is misreported in the Daily Telegraph—it is not the first time the press has misreported a politician—and the Government fully recognise the role that this House has to play in scrutinising the legislation. The Government’s duty, if I may say so, is to listen, reflect on what is said and respond as they think fit, depending on the strength of the points made and the Government’s general policy. I emphasise that there is no question but that this legislative process should be followed duly and properly throughout.

That said, and in relation to following established due process, as it were, we debated Clauses 5 and 6 in detail in Committee on Monday. With your Lordships’ permission, I will not repeat what I have already said in that respect and refer your Lordships to the record in Hansard. To the extent that some points have been repeated, I refer to what was said in the last debate.

If I may also respectfully say so, on various other points that have been raised—for example, in relation to Clause 2, to trafficking, to unaccompanied children and to agreements with third countries and so on— I will not go over the ground that has already been covered or is to be covered in debates on other clauses. These are matters that we are debating on another occasion—the legal rights and remedies, for example—so for today’s purposes I will concentrate on Clauses 5 and 6.

I should perhaps once again go over the ground of what Clauses 5 and 6 actually say. If I am right and your Lordships accept the analysis, I venture to suggest that at least a considerable part of your Lordships’ concerns may be reduced or laid to rest.

In simple terms, Clause 5 deals with two different groups. The first group are nationals, including persons holding an identity document, of the European countries listed in new Section 80AA of the 2002 Act, which are the EU member states plus Switzerland and Albania. If a national of one of those countries makes an asylum or human rights claim, they may none the less be removed unless there are exceptional circumstances. The exceptional circumstances, which again were referred to today by the noble Baroness, Lady Meacher, are defined in Clause 5(5). This part of the Bill is essentially the same as the structure that has stood for many years, including when we were part of the EU, with the addition of Switzerland and Albania. These are safe countries and, in the Government’s view, no reasonable objection can be made in relation to this group.

Now we have the second group, who are nationals of all other countries: those outside the European countries defined in new Section 80AA. What is the position in relation to those nationals? The first point to make is that if the migrant is a national of another country—with all respect to the Republic of Ghana, the Republic of Uganda or India, let us take Nigeria—and they make an asylum or human rights claim, for example because of a risk of persecution for their sexual orientation, they cannot be sent back to that country. That is clear from Clause 5(8), so a lot of the concerns expressed about persons being sent back to these countries will relate to nationals of those countries who do not want to be sent back to them. Unless others correct me, if they make a protection—that is to say, an asylum or human rights—claim, they cannot be sent back as nationals to those countries where they fear persecution. That is a very considerable safeguard.

Where can they be sent back to? They can be sent back only to another Schedule 1 country, but subject to very important conditions. The most important condition in this context is that set out in Clause 5(3)(d): only if there is reason to believe that they would be admitted to that country. In other words, it depends on whether we have an agreement with that country to take them back. That is not at present the case, except in relation to Rwanda, but it may in future be the case in relation to other countries.

To take a point raised by the noble Lord, Lord Kerr, or possibly the noble Lord, Lord Carlile, as to whether such future agreements would be—forgive me, it was the noble Lord, Lord Hannay—subject to parliamentary scrutiny, that is a matter for the future. I cannot commit the Government on that here at the Dispatch Box. However, I think your Lordships can be reassured that the availability of all kinds of remedies and the force of public opinion in this country would necessarily require a very full debate to take place before we made an agreement with another country. There is the constitutional safeguard of the constitution of public debate in that regard.

There is no indication that the countries mentioned in this debate—very understandably, Nigeria, Ghana, Uganda and even India—are likely to be, in any foreseeable future, places to which the relevant migrants could be sent. If we were ever to reach an agreement with another country, the Secretary of State has powers in Clause 6, in particular Clause 6(3), to exclude from that agreement persons of particular sexual orientations or with particular protected characteristics set out in that clause. That is a further protection against the fears noble Lords have expressed.

If all of that were to fail, it remains the case that the individual affected could make his suspensive harm application on the basis that he would suffer irreversible serious harm in that context. I think I can legitimately offer noble Lords reassurance that a great deal of the fears understandably expressed in your Lordships’ Committee rest on a particular view of the Bill that is not entirely correct.

I was asked by the noble Lord, Lord Paddick—it was implicit in most of the other comments—what Schedule 1 is for. I think the noble Lord, Lord Kerr, asked what the rationale of Schedule 1 is. The answer is that Schedule 1 is a reproduction, an amalgamation and a restatement of all the existing legislation from 2002 onwards, in which various countries over the years have been added as safe countries. For example, in 2005 the Labour Government added India on the basis that it was, in general, a safe country.

This also enables me to deal with the “in general” point, which has stood as a statutory point for the last 20 years at least. It might not be entirely within the active career of the noble Lords, Lord Hannay and Lord Kerr, but it has been on the statute book for 20 years. It has not so far given rise to any particular difficulties. That is the background to what we are considering.

In the future, it might be appropriate to keep Schedule 1 updated; it might be necessary to make changes from time to time. Let us cross those particular bridges when we get to them. At the moment, there is no practical possibility of Uganda, for example, accepting migrants who arrive in Dover into Uganda. It might be, to take a point raised by the noble Lord, Lord Carlile, that the existence of Schedule 1 or the failure to amend it, might be challenged in judicial review. If I may respectfully say so, it would be a somewhat adventurous case to compel a Minister to legislate or to amend primary legislation, but let us again cross those bridges when we get to them.

I hope that I have not taken up undue time and have covered most of the questions that I was asked. I am sure that I shall be reminded if I have not done so; I will do my best to answer them, if anyone reminds me.

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[Lord Hacking (Lab)]

My Lords, with apologies to the noble Lord, Lord Paddick, I will intervene briefly. I very much want to hear what is said by my noble friend Lord Coaker, who will be speaking next. I have only one very simple observation to make. Although I have attended most of the debates on this Bill I have not been able to get into the detail of this, and I certainly did not get into the detail of this problem until my noble friends Lord Davies of Brixton and Lady Chakrabarti, and the noble Lord, Lord Balfe, spoke. It is a very simple proposition: these provisions are just unworkable.

[Lord Coaker (Lab)]

My Lords, I start by thanking my noble friend Lord Davies for Amendments 57B and 58A, which I think are very worthy and have signed. They encapsulate the points that I and many noble Lords have made throughout the passage of the Bill so far, and no doubt will in the future, that it is not only issues of principle that concern many of us with respect to this but that many of the provisions are simply unworkable and raise serious questions.

If noble Lords have not done so already, it is worth taking up the point of the noble Lord, Lord Balfe, and reading Clause 7(12)(a) and (b), which is at the heart of this group of amendments. As the noble Lord, Lord Balfe, pointed out, the captain of a ship or aircraft, the manager of a train or the driver of a vehicle must conform to the directions of an immigration officer to detain an individual and stop them escaping. That is not only if it is reasonable to do so or if it is something you could understand them doing; they must do it—they have no choice. I do not know about some of the lorry drivers the Minister knows, but good luck with that. The serious point was made that the language barrier will be enormous, or at least significant, in many of those instances.

I have some specific questions, and they repeat and reinforce some of the points that have been made. Can the Minister explain how the captain of a ship, a lorry driver or a train manager—that is who we are talking about here—will detain these people? If the immigration officer requires them to detain someone, how are they meant to do that? As my noble friend Lady Chakrabarti and the noble Lord, Lord Paddick, ably put it, given that they are not warranted officers and do not have the powers of police officers or other individuals, what force can they use? “Excuse me, please do not get out of my lorry. I have been required by the immigration officers to stop you”—I am not sure that that would work, but let us say it does. But if it does not, and the person tries to get out, what can they do to stop them? I hope the Minister can explain that. The problem is that if they do not stop them, they can be prosecuted. One of the noble Lords who contributed said that it is not that they might be prosecuted but that they will be prosecuted if they do not conform. What happens if they try but the person escapes? Who decides whether they have tried enough—that they have gone to a sufficient extent to prevent the person leaving? Knowing the practicalities of this would be useful.

Clause 7 says “vehicle”, which means a lorry, but does it also mean a car or a campervan? If you are a driver of a car and somebody is in the back, do you have to stop them getting out on the direction of an immigration officer? Is it the same rules for children as for adults? The Minister will say I am nitpicking, but we are in Committee and that is the whole point of Committee. Whether for a lorry driver, train manager or car driver, we need to know whether the Government assume that you can do the same with children and what force is applicable with respect to children vis-à-vis an adult. There are, as I say, a significant number of questions.

The last point I want to make, which was raised by my noble friend Lord Davies, is about the detention period for which someone can force a person to stay in their train, on their aircraft or in their car. What is the reasonable length of time? How does it work? I think the Bill may say a few hours but what happens when that expires? The Secretary of State is then required to say that it can be extended. How does that work? How is the driver informed about that? On the practicalities, the noble Lord, Lord Balfe, made a really interesting point, which again sounds like nitpicking. If you are a train driver or a lorry driver, and you arrive somewhere and are required to stay there for 12 hours or 24 hours, what rights do you have? Are you required to stay there, or can you pass it on to somebody else to take over from you and carry on with that period of detention?

My noble friend Lord Davies and the unions, and others who have supported them, have raised a series of important questions about why the detail is so important and why many of us have questions about not only the principles of the Bill but some of the proposals in it and the workability of them.

[Lord Murray of Blidworth (Con)]

My Lords, Clause 7 includes requirements for various persons, such as owners and agents of a ship, aircraft, train or vehicle, the captain of a ship or aircraft, the train manager or the driver of a vehicle, to comply with directions for an individual’s removal from the UK. The noble Lord, Lord Davies of Brixton, has explained in his Amendments 57B, 58A and 71B that he seeks to probe the legal obligations these provisions place on transport operators.

If I may, I will address the point from the noble Lord, Lord Coaker, about whether this relates to private vehicles. The answer is that it is related to scheduled or chartered services, not individual cars or campervans.

I would like to make it absolutely clear that the Government are not making transport workers or operators undertake immigration functions. Clearly, I am in agreement with much of what we have heard during the debate on this group. That is not something we would want to do. Nor are the provisions in Clause 7 about commandeering vessels or vehicles, as was suggested in the debate on the last group; we can and do make arrangements for removal by scheduled services or chartered services. Nor are these new requirements; they reflect provisions that are already in place in Schedule 2 to the Immigration Act 1971 for arranging the removal of persons not subject to the new duty in the Bill but otherwise liable to removal from the UK.

Having placed a person on board a ship, aircraft, train or vehicle for their removal from the UK, it is only reasonable that the Secretary of State or an immigration officer may require the relevant captain, manager or driver to prevent the person disembarking while that vehicle, ship, aircraft or train is still in the UK, and effectively keep that person in their custody until they have reached the destination. Clause 9(2), which is the subject of Amendment 58A, then applies the relevant existing criminal offences in Section 27 of the Immigration Act 1971—which already apply to carriers who fail to act under instructions to remove a person under that Act—to instructions to remove a person under the powers set out in this Bill.