Illegal Migration Bill

Lord Etherton Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

It is the concern of several of us that the proposed new regime of detention facilitated by the Bill does not distinguish whether you are a child, a victim of trafficking or a pregnant woman, and that you will be subject to initial detention of not less than 28 days. Due to the ouster clause, there are also no means for anyone to challenge the lawfulness of the Government’s action, putting it beyond legal remedy. It is therefore of the utmost importance that we understand the legal framework that will be put in place to ensure that detention and safeguarding standards are established, and that detention sites are designated by law, not by expedient, as suitable.

[Lord Etherton (CB)]

My Lords, Amendment 69 is in my name. I am very grateful to those who have co-signed it: the noble Lord, Lord Carlile, the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Cashman.

The amendment provides for a general standard or series of standards to be applied—to some extent, picking up some of the more specific points that have been raised by other Members of the Committee. The amendment says:

“The conditions under which persons are detained pursuant to this section must comply with United Nations High Commissioner for Refugees Detention Guidelines”.


This becomes particularly important in the context of this proposed legislation because there is no time limit currently provided for detention. Indeed, earlier today, the Minister, the noble and learned Lord, Lord Bellamy, made great play of the fact that currently Rwanda is the only country in Schedule 1 which has actually signed up to admit people and therefore the rest of the people are not going to be accommodated by way of a removal.

People who are not suitable to go to Rwanda, which, according to the FCDO’s travel guidelines, would certainly include LGBT people, would be subject to indefinite detention until some other arrangement—if and when, if ever—with a truly safe place for that group was arrived at.

The UNHCR’s refugee Detention Guidelines currently set out, in guideline 8, some 18 minimum conditions of detention. They range from general propositions on treating asylum seekers with dignity to conditions around medical treatment; the ability of persons resident in detention to make contact; physical exercise; for children, education and vocational training; standards of food; and so forth. We certainly know that, on the ground at the moment, those standards are not being adhered to in the accommodation currently being occupied by those who seek asylum.

The time has come—particularly in view of the possibility of detention without any limit whatever; although that issue is going to be dealt with in a later group, I might add that it is in itself contrary to guideline 6 of the UNHCR’s refugee Detention Guidelines —when the Government must commit themselves to the minimum recognised standards that apply to asylum seekers. As others have said, we are not just dealing with numbers—number 1,231, for example. Each of these cases is a human being deserving of dignity and proper treatment.

Those are the minimum standards set down in guideline 8. I would like to know whether it is the Government’s proposal that they should adhere to these minimum standards.

[Baroness Chakrabarti (Lab)]

My Lords, I rise in support of the noble and learned Lord, Lord Etherton, whose Amendment 69 I have signed. It would require detention conditions to comply with those set out in guidelines by the United Nations High Commissioner for Refugees. I need not repeat the arguments that the Committee well understands about the United Kingdom’s historic role in the refugee convention and other aspects of the post-war human rights settlement.

Like many noble Lords in this Committee, I have been in these debates for some time, so I understand that there is some dispute on the Government Benches about the UNHCR. The UNHCR says something; they say, “So what? It is just another woke NGO”. Well, it is not. The UNHCR has a special role in the convention. It is a UN body and it was given a special role in the supervision of the refugee convention.

I simply refer noble Lords to Article 35 of the convention, headed “Co-operation of the national authorities with the United Nations”. We were an architect of the convention and a key signatory to it; I am sure that every Member in this Committee wants to abide by it. Article 35 states:

“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention”.


This body was given from the beginning the very special role of supervising the convention. That is fair enough, is it not? It cannot just be that every nation gets to interpret the convention in its own way; that would not exactly be global governance.

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[Lord Wolfson of Tredegar (Con)]

I am not focusing on the supervisory duty. For these purposes it does not matter whether we have a duty to co-operate once a month or once a day, or to get in touch with it every half an hour. That is just on the scale of the nature of the co-operation duty. My point, and I submit that it is a fundamental one, is that there is a difference in essence—a conceptual distinction—between a co-operation duty with the UNHCR as to whatever the treaty means and agreeing that whatever the UNHCR says the treaty means is what it means. It is not an accident that interpretation was excluded from Article 35. Having made that point about five times, I will sit down.

[Lord Etherton (CB)]

Perhaps I could just add to all of this. I am sorry to do so; it is a bit unseemly for the lawyers to start arguing among themselves but I think I ought to record that I do not agree with the proposition of the noble Lord, Lord Wolfson, that the effect of Article 31 of the Vienna convention means that this country or any country can give to such a refugee convention any meaning it wishes to. It has to apply, under Article 31 of the Vienna convention, the wording of the refugee convention, bearing its ordinary meaning in the context of what it proposes.

This is a sideline. The Committee needs to concentrate on what the role of the UNHCR is. I think that it is perfectly obvious to virtually everybody that it has a special supervisory role under the refugee convention, as interpreted in accordance with the Vienna convention, in the application and the practical application of the refugee convention. What I was talking about in my amendment, supported by the noble Baroness, Lady Chakrabarti, was giving due weight to such a body. There is no other body that has that role. This body does, and it has been given by the United Nations.

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[Lord Etherton (CB)]

I asked whether confirmation could be given that the Government will adhere to the 18 minimum conditions in the UNHCR Detention Guidelines. It would be very helpful for the Committee to know specifically which ones they intend to comply with and which they do not.

[Lord Murray of Blidworth (Con)]

As I have already indicated, the standards that will be adhered to are those prescribed already in legislation. While the points set out in the UNHCR’s document map on in some respects, there is no exact overlap. The regime which will be applied is that which I have already described.