Illegal Migration Bill

Lord German Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Lord German (LD)]

The bit of procedure that I am looking for is whether the Government intend to do the proper consultation exercise, as laid out in the Cabinet Office directions about the way to manage that process, which is one of consultation and agreement rather than imposition. Two of these legislative reform memoranda have been laid already, and both concern that important section in the Welsh legislation on looking after children. In that area, we need some confidence that this will be a dialogue rather than an imposition.

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Lord for that intervention. I assure him, first, that the Government are aware of the legislative consent Motions to which he refers, but they are of the view that the LCM process is not engaged. None the less, I further assure the noble Lord that, although Clause 19 enables regulations to be made applying the provisions in Clauses 15 to 18, we will of course consult with the devolved Administrations—the process for which the noble Lord called—within the devolution settlement. In so doing, we will grant the respect that the noble Lord was keen to stress and the importance of which we on the Front Bench recognise.

The noble Lord also tabled Amendments 142, 143, 144 and 147, which seek to delay the commencement of the Bill until the current Brook House inquiry has reported. We acknowledge that these amendments are well intentioned. The whole Committee can agree that we want to see the conclusions of the Brook House inquiry, but, none the less, I cannot agree that the implementation of the Bill should be made conditional on this event, important as it is. It is worth adding that, as the Committee and certainly the noble Lord will be aware, this inquiry focused exclusively on one immigration removal centre, not the whole detention estate. Clearly, matters of great interest may well emerge and potentially apply across the whole estate, but I submit that we should not confine ourselves to proceeding on the basis of such evils as may be disclosed in this report and as are identified in a single case, rather than considering the estate as a whole.

As the noble Lord said in presenting his argument, the chair of the inquiry has indicated that she intends to issue her final report in the late summer, so the noble Lord and the Committee should not have too long to wait. But my point is that, as a Parliament, we should legislate from the general rather than the particular. Well intentioned though it is, the noble Lord’s amendment places the Brook House inquiry at the forefront and everything else would flow from that. I submit that that would not be the best course on which to proceed.

We will carefully consider the recommendations of this inquiry, including recommendations for that wider application to the immigration and detention estate and the practice of detention, but I submit that that is not a reason for delaying the commencement of the Bill. The debate has been interesting, and I am grateful to Members from across the Committee who contributed, but at this stage I invite the noble Baroness to withdraw the amendment.

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[Lord Hannay of Chiswick (CB)]

My Lords, I support these amendments that the most reverend Primate has put down and thank him, again, for initiating a whole day’s debate here last December on Britain’s immigration policy and the need to take an overall approach, a general approach, not just dealing with it like the little Dutch boy, running around sticking his finger in one hole in the dyke and another hole comes—that is what we are faced with with this Bill. The most reverend Primate is helping us to avoid the mistake of a patchwork approach, so I welcome these amendments. I think it is a shame, myself, that we should be debating this at this hour in the evening in a rather scantily attended House, just in order to save one extra day in Committee; it would have been much better to have had that.

The point that the most reverend Primate is making about the need for an overall approach—this long-term approach which Governments of both parties no doubt would stick to—must be the right one. The other point he has made very forcefully in this context is the need for international co-operation. That is also absolutely vital.

Unfortunately, as innumerable speeches in Committee have shown, there is a very strong view, supported by many outside this House and many international bodies, that the action in the Bill is contrary to our international obligations. That in itself is bad enough, but what is worse is that it is totally inimical to getting the wider international co-operation we will need if we are to handle these problems. If we insist on going ahead and breaking our international obligations, we will get zero co-operation from other countries which are also bound by them and which believe that they are being broken by the Bill.

I wish the Minister would listen to what I was saying rather than having a conversation. That would be very helpful. I will wait until he stops having his conversation. He has stopped; I thank him very much.

I think the Government need to address this point—oh dear, he is talking again.

If what we are planning to do in the Bill breaks our international obligations in the view of many of our closest partners—the ones in the rest of Europe, for example, without whose co-operation we will get absolutely nowhere with the measures being proposed—we are not going to get that co-operation. That would be extremely serious, with its knock-on effects on the trade and co-operation agreement and so on.

I hope the Government will listen carefully to this debate, on both the amendments in the name of the most reverend Primate, and see that there is a great need to go down that road.

[Lord German (LD)]

My Lords, I am pleased to offer our support from these Benches. The most reverend Primate has delivered what I would call a swerve ball: he has gone around the side of what is being proposed by the Bill and tried to find a route for what will follow it. He raised the issue of the Modern Slavery Act at the beginning, which we have debated in Committee as being something this Parliament has been very proud of indeed. All of that has been put to one side in order for the Government to make these short-term decisions.

It is interesting that, on many occasions, Ministers on the Government Front Bench have referred to the Bill as dealing with an emergency, whereas they have not yet recognised the context that what is happening is a global problem. The interesting figures at the beginning of the Joint Committee on Human Rights report on the Bill enlighten us:

“In mid-2022, the UN Refugee Agency … estimated that there were 103 million forcibly displaced people worldwide. Of those, 32.5 million are refugees and 4.9 million are seeking asylum — the highest number since the UNHCR was created in 1950. This number is likely to increase given the deadly conflict that has erupted in Sudan”.


Over the page, it says that we will not solve this on our own. Treating this as an emergency will never satisfy the issue that the Government are trying to address of trying to deal with the problem at source.

The Government say that they will stop criminal gangs with the Bill, but many in the Committee believe that this simply will not happen. Many of your Lordships believe that the Bill, as it stands, is as a gift to traffickers, who know that their victims will be too frightened of the threat of removal to approach authorities.

The logic behind the most reverend Primate’s amendment is quite clear to us, in relation to trafficking. It focuses on efforts to tackle the traffickers rather than penalise the victims. What most of us find most abhorrent about the Bill is that it tackles the victims to try to deal with a problem that is well beyond its reach. I absolutely support the view of the noble Lord, Lord Deben, on the supply chain process: it is just silly—not sensible—to think that it will work.

That is why we need a global and collaborative approach with international partners. That is what is needed when traffickers operate across national boundaries and borders. This amendment therefore addresses the question: what next? It puts co-operation front and centre of its approach and it seeks a role for the UK in which it is a leader, rather than a follower and a country trying to pull up a drawbridge. Trafficking is an abhorrent crime and we need to play our part in tackling the crime at source. It needs a global perspective and collaboration, rather than headlines with an election in mind.

[Lord Paddick (LD)]

My Lords, as other noble Lords have said, a 10-year strategy, implementation plan and associated measures are needed to tackle human trafficking, particularly, as the most reverend Primate’s amendment suggests, through international collaboration to deal with issues upstream and downstream—as the former oilman said. His experience of supply chains is similar to that of the noble Lord, Lord Deben.

However, the noble Lord, Lord Hannay, raised a justified concern about the reluctance of other partners, who would be central to the success of such a strategy, if they believed that the United Kingdom were breaking its international commitments, whether regarding the European Convention on Human Rights or the European convention on trafficking. The most reverend Primate highlights the worrying slowdown in prosecutions for human trafficking, which must be reversed.

I have one concern about the most reverend Primate’s plan. I understand the need to establish a long-term strategy, but an incoming Home Secretary could thwart a 10-year strategy by asking Parliament to repeal any law that contains the provisions in this amendment. Sadly, enshrining a 10-year strategy in law does not guarantee its longevity, but it would make it more difficult to dislodge. That is why we support these amendments.

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[Baroness Lister of Burtersett (Lab)]

My Lords, I very much welcome this amendment. I should say that this is not a bid to join the Bishops’ Benches and I thank the most reverend Primate for introducing it. I want to make just three points.

The first has been implicit in quite a lot of what has been said by the most reverend Primate and by other noble Lords on the previous amendment. It is that, if we are to have a global, collaborative strategy, it has to be from a different mindset from the one that underpins the Bill, because that mindset would prevent such a global strategy. We have to stop acting as if we are somehow uniquely burdened by this global refugee crisis. The figures have been given showing how other countries are pulling their weight much more than we are. Countries with far fewer resources than we have are doing so, yet with the Bill we act as if somehow the poor UK is under siege from this global crisis. To think globally means thinking differently, and we have to think and act with compassion. Compassion has certainly been lacking in this Bill and in the approach being taken.

My second point, which links with this, is that we have to start using a different language. The point has been made a number of times during our debates: people are not illegal and journeys are not illegal, but they are being turned illegal when they arrive here. Please let us not talk about “illegal routes” or “illegal migrants”. They are coming by irregular routes but they are not illegal. This goes right back to the beginning, when we talked about the language that is often used by some politicians and by the media: the language of invasion, cannibalisation and so forth.

It reminds me that I spoke in an even later debate—I think it was at about 2 am—on Albania. I met a group of young Albanians and have just discovered the notes I made from that meeting. I could not find them anywhere, and now I have. They talked about how disturbing they found the way that they were talked about in the media. In one newspaper—I leave the Committee to guess which—they were called “vermin”. I wrote down what they said: they felt violated, unsafe, scared, despised and unwanted. It is dreadful that young people feel that because of the way that we talk about them, so we have to change our language when we talk about the future migration strategy. The research of HOPE not hate suggests that every time politicians or the media talk negatively, it leads to a spike in far-right activity against migrants. Again, that is no basis for building a strategy.

Thirdly and perhaps more positively—this goes back to something that the right reverend Prelate the Bishop of Durham said earlier—if we are going to develop a strategy, and I hope that we will, we will have to involve refugees themselves in its development. We need the expertise of their experience of what it is like to flee countries and start a new life elsewhere. We have to base our strategy on that understanding, and it involves what the right reverend Prelate referred to earlier as “co-production”. It is not good enough for politicians to sit in their offices and come up with a strategy, then talk to politicians in another country and say, “Right, here’s our strategy”. We need to work from the very start with those people who are experiencing this. That is simply all I want to say.

I wish we could have had this debate at a better time. I am very sorry I was not able to be part of the debate that the most reverend Primate instigated in December, but I have read it and know that there were some inspiring speeches and lots of ideas that could go into the strategy. As I said in my earlier intervention, this is not requiring the Government to do X, Y and Z so that the next Government have to do X, Y and Z; it is simply saying that there has to be a strategic framework, and then Governments work within that. It does not matter what the complexion of the Government is. I certainly hope that my party in government would want to develop a strategic approach towards refugees and, as I say, one that works with refugees in building that.

[Lord German (LD)]

My Lords, it is a privilege to be able to follow the words we have just heard from the noble Baroness, Lady Lister, and my erstwhile colleague the noble Lord, Lord Bourne of Aberystwyth. There are just a few things I want to add to what I said on the previous amendment. I think that, as a principle—the principle that the noble Baroness, Lady Lister, espoused just now—we need to look beyond ourselves. It is only by looking beyond ourselves that we will find a sustainable and effective solution for the problems we have in front of us.

I was thinking about the models for the sort of process that the most reverend Primate is suggesting. One is the Global Campaign for Education. It is known for its Let me Learn campaign, and it works across the globe to bring together people. I have been in meetings in this House with children from around the globe, from the poorest countries to the richest, using modern technology. The Global Campaign for Education basically wants to ensure that every child in this world has the right and the privilege to be educated by being sent to school. That level of collaboration brings together the United Nations, the rich countries and the donor countries, who then meet the poorer countries—there is a whole structure that sits around it. Unless we start thinking about this as being outward looking, and unless we look beyond ourselves, we are never going to find a sustainable solution.

We support this amendment, as it is seeking to recognise that our UK response to refugees has to be considered by how it interconnects with the global community. We cannot pretend that we can pull up the drawbridge and be isolated from the global issues around us. What we do impacts on other countries.

There are some countries which would follow the lead that the UK takes, but that is a race to the bottom. If we seek to discharge responsibilities for refugees to other countries, there is every chance that other countries will follow the UK’s lead. As countries do this, refugees will be pushed back to the border countries and further to the regions from which they fled. A smaller number of countries will end up shouldering the world’s refugee resources, which will be stretched, and regions will be destabilised. That is a real possibility around the globe.

The UK will be impacted in one way or another, and we cannot separate ourselves from this. The whole global refugee protection system would be at risk of collapse. Forced displacement is a global issue which requires a global response. We need to work towards these ends as described in this amendment, and we need to be seen as a country which is able to take a lead.

[The Lord Bishop of Durham]

My Lords, the most reverend Primate might be nervous—he did not know I was going to stand up and he has no clue about what I will say. But I will start by saying I fully support his amendment. I will ask the Minister about the Global Compact on Refugees. The UN has been seeking to develop a global strategy on refugees for a number of years, and it was my privilege to join the Home Office team dealing with the Syrian refugee crisis in Geneva in 2018, at its request. It asked me to make an address. I say this partly in answer to my colleague: actually, the Home Office as well as the FCDO has been engaged in some of those discussions. But it seems to me that we have almost lost sight of the fact that we signed up to the global compact. I accept that the Minister may need to write on this, but I ask him: where are we now with our commitment to the global compact on refugees and our commitment to engage in that ongoing development of a UN strategy that responds to refugees? Are Home Office people still involved in those discussions, or has it all moved to the FCDO?

Illegal Migration Bill

Lord German Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I am, of course, hugely disappointed that some of our colleagues do not want to listen to a fascinating debate on Clause 60 of the Illegal Migration Bill, just as some of those who stayed until 4 am the other morning did not want to participate in the debates on the Bill. However, I am delighted that the noble Earl, Lord Russell, is joining our ranks. It is wonderful to have an Earl Russell back. Those who remember Conrad Russell will know what a formidable Member of this House he was, and I am sure that his son will do justice to his memory.

I am talking against Clause 60 standing part. This clause was added by the Government on Report in the Commons, so it was not discussed by MPs. It would amend a section of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 that is about factors that damage the credibility of an asylum applicant.

The point of Clause 60 is to expand the circumstances in which credibility would be damaged—where a claimant fails to produce or destroys an identity document or, indeed, where they refuse to disclose information such as a passcode that would enable access to information stored electronically, such as on a mobile phone. It is rather odd that we should be debating this poor, lonely little clause on its own. Indeed, there was perhaps a good argument that it should have been grouped with Clause 14, which my noble friend Lord German, on whichever day it was—

[Lord German (LD)]

On a variety of days.

[Baroness Ludford (LD)]

Yes, when it was proposed that Clause 14 should not stand part of the Bill. My noble friend debated issues about the powers of the Government to extract information concealed behind PIN numbers on phones. If memory serves, Clause 14 was particularly in relation to people who are detained, while Clause 60 oddly stands on its own—apart from Clause 14. But they need to be looked at holistically, to try to get some assessment as to what new powers the Government want. Are we in danger of getting spillover to sectors other than asylum?

The failure to provide information, an identity document or a PIN number would be added as a type of behaviour considered damaging to a claimant’s credibility. It is not restricted to people who are caught by Clause 2; the intended effect seems to be directed more at people seeking asylum who arrive on a direct flight from the country in which they face persecution. In a sense, it does not have much to do with this Bill, which is another reason why it sets off a bit of an alarm bell. The problem is that making a direct journey from a country in which the person is at risk of persecution, perhaps where the persecutor is the state or an agent of the state, may require the person not to travel with documentation that would identify them if they presented that documentation or were searched as they passed through an airport. That would concern an identity document—so there are some issues around penalising a person because they have not produced such a document, and I would be grateful if the Minister could respond on that issue.

On the other arm of it, with regard to insisting on the person delivering the passcode or PIN for their phone, I am wondering how widely that is expected to apply and how it relates to Clause 14 on getting access to PIN numbers and, indeed, to handing over mobile phones. My noble friend Lady Hamwee raised the problem that that would mean asylum applicants not having access to their contacts. In the scenario that this Bill covers, that means that people could not phone their family to say, “I’m safe—I haven’t drowned in the channel”. So that is one aspect that arises. The other aspect is that of access and forcing someone to give up the PIN on their phone. When the Minister replied to the debate on Clause 14 and Schedule 2, he said that that the information on the phone

“can … assist in determining a person’s immigration status or right to be in the UK … We all know that mobile telephones contain a wealth of data relating not just to the owner of the phone but to where that phone has been and who they have been with—all of which can be used to build up an intelligence picture which can facilitate criminal prosecutions”.—[Official Report, 7/6/2023; col. 1542.]

We are all in favour of facilitating prosecutions. That is one of the reasons why we have been so dismayed by the provisions on victims of modern slavery and trafficking. Another reason is that there is nothing in the Bill to enhance the prosecution of smugglers and traffickers. Suddenly the Minister came out with this route which is supposed to facilitate criminal prosecutions. My noble friend Lord German referred to a High Court case which said that what the Government had been doing was illegal and that they were wrong to extract information concealed behind PINs on phones. The Minister said that the powers that have been put into the Bill in Clause 14 are fresh powers to respond to the High Court judgment, so this is a new suite of powers.

What we have got is in two different clauses. We have new powers, and the common theme across them is access to people’s mobile phones and other electronic devices by forcing them to give up PINs. I am wondering what the scope of this is, beyond people detained or caught by Clause 2, because Clause 60 appears to apply to anybody who is outwith the scope of the Bill. What are the boundaries of the powers that the Government are granting themselves to access people’s mobile phones? I cannot claim to be an expert on this issue, but I know there has been a lot of commentary and activity on the question of victims’ mobile phones in sexual abuse cases. Will the Minister clarify exactly what the purpose of Clauses 14 and 60 is? Why was Clause 60 brought in to stand on its own rather than Clause 14 being amended? What is the composite picture that the Government are painting? How are their powers going to be constrained? Are the rest of us going to find that one day all these powers apply to us as well? I am raising this point as a clause stand part debate because Clause 60 seems to raise some rather troubling questions about the powers that the Government want to give themselves to access mobile phones.

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[Lord Sharpe of Epsom (Con)]

I think that that question has been asked and answered by my noble friend; I cannot update the House on that at the moment.

As my noble friend set out on Monday, we will provide an update to the House before the first day of Report.

[Lord German (LD)]

In talking about this matter, could the Minister address the issue of why the Cabinet Office has issued guidance which the department has clearly ignored? Is there a need for the Cabinet Office to give guidance to Ministers on how they should produce legislation? If so, why have the Government not followed that advice?

[Lord Sharpe of Epsom (Con)]

My Lords, the answer lies in the words the Home Secretary used this morning in front of the Home Affairs Select Committee. She said:

“We will be publishing it in due course”.


I am sorry to repeat those words again. She added:

“The issue is that there are many unknown factors … upon which the Bill’s success is contingent … For example, … the delivery of our Rwanda agreement. We are currently in litigation and those timelines are out of our control. We need to conclude our litigation relating to our Rwanda agreement. Once we have a clear view of the operability of Rwanda confirmed by the courts, then we will be able to take a very firm view about the economic impact of this Bill. … I would also say that to my mind it is pretty obvious what the economic impact … will be. We will stop spending £3 billion a year on … asylum cost”.


The Bill

“will lead to the cessation of 45,000 people in hotels and £6 million a day. To my mind, those are savings that we cannot ignore”.

I am afraid that I am unable to improve on that.

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[Baroness Hamwee (LD)]

Amendment 139A is in the name of the noble Lord, Lord Alton of Liverpool. The noble Lord, Lord Carlile of Berriew—who has managed to escape for the moment—has added his name to it, as has the right reverend Prelate the Bishop of London.

This amendment seeks to prevent immigration data being shared for the purposes of Clause 2(1), under which the Secretary of State must make arrangements for the removal of people who meet the four conditions. I am very happy to have my name to this—I would not have signed it if I were not happy—because the issue of exemption from the Data Protection Act is one which my noble friend Lord Paddick and I have raised many times since we debated the then Data Protection Bill. The exemption from restrictions on sharing data for the purposes of immigration enforcement or immigration control—I do not recall which but it amounts to the same thing—is a very wide exemption.

The concern here is to ensure that victims can approach the authorities for assistance without the fear of removal as a result of that contact, or of data being shared with immigration enforcement. Noble Lords have frequently made the point about people without secure status having more confidence in smugglers and traffickers than they do in the authorities. The traffickers’ threats are not ones that they will take lightly; they control their victims, notwithstanding that the victims have “escaped”.

We have a number of other clause stand part notices, all amounting to the fact that we oppose the whole of the Bill. The clauses which are listed in this group are not substantive clauses; in other words, they are not about policy. I will mention just one, which is about financial provision. I am alarmed—we all are—at how much will be spent on what we consider to be the likely costs of the policy. I will not go over them again. We are firmly opposed; I do not think I need to spend time re-emphasising that point. I beg to move Amendment 139A.

[Lord German (LD)]

My Lords, I have two sets of amendments in this group. First, Amendments 142, 143, 144 and 147 seek to examine how the Brook House inquiry findings can influence the way in which the Bill will be enacted. Secondly, Amendment 139FE seeks to examine the devolution issues, which I will be looking at specifically through the legislation governing Wales and, very specifically, the Act of Parliament which I want to test the Government on.

First, my intention is to find out how the Government intend to deal with the recommendations of the Brook House inquiry when it reports and apply them to the changes that it will necessitate in the implementation of the Bill. Under the Inquiries Act 2005, the Brook House inquiry into mistreatment and abuse in breach of Article 3 of the ECHR at Brook House immigration removal centre was instituted in November 2019, following a judicial review proceeding. The inquiry has heard extensive evidence, and it is the first public inquiry into the mistreatment of those detained under immigration powers. The conditions of that detention provided a unique opportunity for public scrutiny of and accountability for detention practices and culture.

The inquiry, which we understand will be published in late summer, has heard evidence from detained persons, detention officers, healthcare providers, G4S—which was the contractor responsible for Brook House at the time—employees, Home Office officials, members of the independent monitoring board and His Majesty’s Inspectorate of Prisons. The inquiry also appointed and heard from three experts to address the key issues of the use of force, the institutional culture, and clinical care provision and safeguards. It also examined a vast amount of documentary material and video footage.

Illegal Migration Bill

Lord German Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I had got as far as “My L—” when I was interrupted. I am sorry, I do not mean “interrupted”: I mean when we heard the Motion that the House be resumed. It was not going to be a major speech—it still is not, although I could have spent the last half-hour working on it.

I thank the noble Baroness, Lady Lister, who dealt with the issues very comprehensively, and the Refugee Council, which has been so helpful in briefing us. I simply observe the irony of our debating state support in the context of state-inflicted detention.

[Lord German (LD)]

I apologise to the Committee for speaking twice, but of course this is Committee so I can do it again.

To reiterate some of the issues that the noble Baroness, Lady Lister of Burtersett, raised, this is an issue which you need to understand if you are to propose and manage this policy and move it further forward. “What happens next?” is not just a big question, it is of crucial importance to people and people’s lives. I will not repeat my statements about assessments, which are well made and obviously made all the time, but we have heard an exposition of this issue, which needs to be resolved. We need answers to those questions.

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[Baroness Lister of Burtersett (Lab)]

My Lords, I rise in support of Amendment 58. I am sorry that I could not be at the Grand Committee debate on the regulations because of another commitment. Given the representations that have been made by a range of an organisations, I felt it was important to say a few words.

All people should have access to secure, safe and decent accommodation, no matter what status they hold. While it is right that we should not have people housed in hotels for longer than necessary, the removal of so-called red tape, which potentially includes shortcuts around safety standards, as we have heard, seems exceedingly risky. Once again, we have been asked to put our trust in the Home Office and its subcontractors instead of properly resourcing local authorities to provide adequate housing. This is not the way to address the backlog or accommodation shortages. The speed of procurement should not come at the possible cost of life.

Earlier this month, while the Levelling-Up Secretary was unveiling new laws protecting renters’ rights, his colleagues were debating the Government’s intention to scrap HMO licensing for asylum seekers’ accommodation. That seems somewhat perverse. The Government state in their Explanatory Memorandum to the regulations that part of the rationale for the change was that subcontractors

“raised concerns that … regulation is posing a barrier to acquiring … properties”.

But the suspicion is that subcontractors’ concerns are motivated more by profits than by the need to reduce backlogs and move people into accommodation. As my noble friend Lady Taylor of Stevenage asked during the Grand Committee debate, what evidence is there—again there is this question of evidence; it seems that with every amendment we are asking for evidence—to suggest that this change in regulations will speed up procurement of accommodation? The potential to undermine safety and standards seems very risky if there is not clear evidence to suggest that it will achieve the Home Office’s intended outcomes. Local authorities are concerned that any further erosion of enforcement powers will lead to a decrease in accommodation standards, where the reverse is needed.

The excellent briefing from the Chartered Institute of Housing, Crisis, JCWI and others argued:

“The assertion from the Government that HMO licence levels of protection will be maintained in these properties, but overseen by the Home Office rather than the local authority, is deeply suspect. People are already losing their lives in asylum accommodation managed by private subcontractors on behalf of the Home Office”.


Echoing the noble Baroness, Lady Hamwee, and the noble Lord, Lord Scriven, it was alarming to read at the weekend that asylum seekers were left on the streets in Westminster for two nights running because of accommodation problems and that the Immigration Minister had led moves to require groups of up to four adult males to share single rooms in so-called Operation Maximise. Richard Drax, a Conservative MP, has equated this to putting them in prison. As the leader of Westminster Council commented, to ask people who are

“likely to have been through significant and traumatic events … to share an inappropriately sized room”—

we are talking about a single room here, not some palatial five-star room—

“with multiple strangers defies common sense and basic decency”.

Basic decency, as well as safety, is what is at stake with these regulations.

Can the Minister give us an assurance that Operation Maximise will be abandoned at once in the interest of basic decency? With regard to these regulations, can he reassure us that the Home Office or its contractors have the skills to make a proper assessment of the risks around fire safety that an experienced and qualified local authority environmental health officer would have?

In the recent debate in Grand Committee, the noble Lord, Lord Scriven, asked the Minister to confirm that the same conditions that apply to an HMO licence will be replicated in the contract with the provider of accommodation for those seeking asylum. I do not think that the noble Lord has asked this again tonight, but I hope he will forgive me if he has. As the DLUHC Minister was unable to answer the question because it related to Home Office responsibilities, perhaps the Minister could provide an answer now.

In conclusion, this amendment should have never been needed but, unless we get serious assurances around living and safety standards, I can only question how the Government have decided that creating unsafe homes and putting asylum seekers in them is a decent strategy. As the Chartered Institute of Housing has said, HMOs will undoubtedly prove cheaper, but at what cost?

[Lord German (LD)]

My Lords, this amendment, at its heart, is about the Government’s proposal to exempt housing for asylum seekers from licensing conditions. My noble friend Lady Hamwee outlined the two principal areas of concern, which have been the thread throughout this short debate. One is the conditions of the accommodation and the second is the impact on the rented housing sector in its entirety. I would add that the limited number of properties that are available in the private rented sector is in danger of impacting seriously on the number of houses for people who are looking for that accommodation but are not asylum seekers.

I will ask the Minister as well about the devolved responsibilities in this area, because the private rented sector in Wales is quite differently managed under Welsh Parliament legislation. I would like to understand whether the Government have consulted the devolved Administrations to find out how they propose to deal with this matter. In the case of Wales, all private rented sector accommodation is required to be licensed, not just HMOs. There is a strict regime and landlords pay for that licence. Clearly, that has had some impact on raising standards. That is an important issue, and if it is going to be reduced further, the Government need to explain why.

My noble friend Lady Hamwee pointed out that there is a better way forward, and mentioned the need for a more collaborative, non-regulatory approach. My noble friend Lord Scriven pointed out that licensing provides protections, and I think we all understand that. He illustrated it by talking about smoke and CO₂ alarms. The reduction in standards is implicit in the proposals that are contained in the statutory instrument. It seems to me that we need to have a proper inspection regime, as stated by my noble friend Lord Scriven. The noble Baroness, Lady Lister, raised the issue of the safety of people being at risk. That is at the heart of all this. Are we going to put the safety of this vulnerable group of people at risk by returning to the original situation before the HMO legislation came into place? Are we going to manage the contractors properly and correctly? Clearly, the process of creating unsafe homes is not in anybody’s interest in this country at all, and neither is placing people within them.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Scriven, for moving this amendment. It was a good idea to address this issue in this context, even though it was fully addressed when the SI was debated. The Labour Party voted against the SI in the House of Commons, but it was not pushed to a vote in this House. Nevertheless, this is an appropriate Bill for us to address the issue again.

As we have heard, the regulations for HMOs were brought in following a fire in Notting Hill in which eight people died and almost 100 people lost their homes and possessions. Almost six years after that came the catastrophic fire in Grenfell Tower. These DLUHC regulations could lead to another fatal fire in an HMO used to accommodate people seeking asylum or other people in housing need. As we have heard from the briefings that we have all received—particularly the Shelter briefing, which was a particularly full briefing —people seeking asylum can be particularly vulnerable to fire risks, due to disabilities and health problems, being unaware of what standards to expect in a new country, being unable to read or speak England, and perhaps being reluctant, or less able, to complain to the authorities.

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[Lord Stewart of Dirleton (Con)]

Again, the noble Lord asks a question of some detail and I will, with his leave, respond in writing. I appreciate his point that doubling from one to two is not significant. However, the Committee has heard me speak of the breadth of support and inspection that will be given and the expertise of those carrying out the inspections. I am grateful to the noble Lord, Lord Scriven, for nodding his assent; he can expect to receive a letter from the department in due course.

These regulations are subject to the draft affirmative procedure, and the noble Baroness, Lady Hamwee, said as much in introducing the debate. They have been considered and approved by this House and await approval by the House of Commons. They are subject to sunsetting provisions, as stated. They are an appropriate response to the short-term challenges we face accommodating asylum seekers.

The Home Office has put additional measures in place of a robust nature to ensure that housing quality is maintained to a national standard. In addition to the usual assurances via the terms of contracts entered into, an enlarged team of appropriately qualified inspectors will inspect each eligible property at least once during the exemption period, as I said to the noble Lord a moment ago.

I reassure the Committee once again that these regulations and the actions of the Home Office in drawing them up and moving this policy forward are informed by our consciousness of the terrible past tragedies which have overtaken people living in accommodation of this sort. We are all too well aware of the incidents the noble Lord, Lord Scriven, drew to the attention of the Committee, and to which the noble Baroness, Lady Hamwee, adverted in passing at the outset of her remarks. I offer to the Committee an assurance that we are aware of this and that the inspection regime we set up will, as much as is humanly possible, look to prevent such things happening again.

[Lord German (LD)]

I wonder if the noble and learned Lord could answer my question about the devolved Administrations and their licensing powers?

[Lord Stewart of Dirleton (Con)]

I beg the noble Lord’s pardon; I meant to answer that question and sought specific information from the Bill team on it. The regulations apply only to England and not to Wales, Northern Ireland or Scotland.

Finally, I invite the noble Baroness, Lady Hamwee, to withdraw her amendment.

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Moved by

[Lord German]

58B: Clause 10, page 14, line 5, leave out “and (3)” and insert “, (3) and (3A)”

[Lord German (LD)]

My Lords, as Amendments 61, 62 and 66 are consequential to Amendment 58B, I will speak to all three at the same time as moving it; they all sit together.

Currently, pursuant to Schedule 2 to the Immigration Act 1971, the Secretary of State for Home Affairs may detain people for immigration purposes only in places set out by her in a direction. Detention in places not specified by her in a direction will be unlawful. The Bill amends that direction to include

“any place that the Secretary of State considers appropriate”.

Following the publication of the Bill, the Immigration Minister in the other place outlined that the expansion of the asylum and migrant estate will include military barracks and that the Home Office will

“continue to explore the possibility of accommodating migrants in vessels”.—[Official Report, Commons, 29/3/23; col. 1018.]

More recently, the Government announced plans to house 500 asylum seekers on a barge in Portland, off the coast of Dorset. It remains unclear whether these settings will also be used as detention facilities as the provisions of the Bill seek to give the Home Secretary the power to detain individuals in such places, despite the risks posed by facilities such as Manston, which I will come to later. Some of the further mooted facilities present additional risks of their own, with military bases potentially triggering pre-existing vulnerabilities in people who have likely fled war and/or persecution. Will the Minister explain the reasons for granting the Secretary of State the power to detain people in “any place” that she “considers appropriate”?

If the intention is to allow detention in places not currently set out in the Immigration (Places of Detention) Direction 2021, will the Minister give details of where these places will be? For example, will the detention centres include military sites, such as Scampton in Lincolnshire, Wethersfield in Essex and Bexhill in East Sussex, or barges, such as the “Bibby Stockholm”, due to be moored in Portland? With the announcement this week by the PM of more barges to house asylum seekers, can the Minister advise on the cost of these, given that the aim has been to reduce money spent on accommodation, especially if some of this will be used for detention purposes?

Current Home Office plans suggest that these facilities are being considered for use as asylum accommodation only rather than detention. Can the Minister confirm whether the Government in fact plan to use them in whole, or part, as detention sites? If the intention is to allow detention in places not currently set out in the immigration direction of 2021, will the Minister explain how the Secretary of State will ensure that the standards set out in the Detention Centre Rules 2001 and the Short-term Holding Facility Rules 2018 are met in relation to the treatment of detained persons, including the safeguarding of vulnerable people known to be at particular risk of suffering harm in detention, such as victims of torture and trafficking, pregnant women and those with serious mental health conditions? What legal framework will exist to ensure these standards in such places? Are we to expect regulations and, if so, will we see them in draft before the Bill is completed? Has the Home Office carried out a full risk assessment linked to the proposed expansion of the detention estate and will it be published? How will the Minister seek to avoid scenes such as those at Manston, described by the Chief Inspector of Borders and Immigration as “wretched”, if there is no extra detention capacity when the Bill passes?

It is interesting to note that, just this week, we have had the publication of the report of the unannounced inspection of Manston by His Majesty’s Chief Inspector of Prisons. I am sure Ministers have seen his comments. They are clearly concerning, and I shall briefly mention four priority areas: detention in the facilities was too long; the governance of adult and child safeguarding was poor; there was no accurate data on the use of force or separation from the general population or of incidents of violence and non-compliance; and professional interpretation was not always used consistently. There is a danger that Manston will not be able to cope any better than it was coping when the disturbances took place there more than 12 months ago. The response to the report from the Chief Inspector of Prisons is therefore important, to show that the Home Office will ensure safeguarding and care for individuals, which is not currently present.

According to Charlie Taylor’s report, there is no oversight of leadership and safeguarding, or of the use of force. These are incredibly important issues in places of detention. Care planning for vulnerable detainees and children with disabilities was poor and did not demonstrate individual planning, risk assessment or meaningful welfare checks.

Given the responses that we see about the current detention regime in this very recent report from His Majesty’s Chief Inspector of Prisons, how does the Minister expect to provide new and extra accommodation, given the challenges the Government are already facing, across the country, from many Conservative MPs, for example, who do not want these in their backyards—not in the run-up to an election, I understand? Can the Minister tell us whether barges are really suitable places for the detention of families and children?

Amendment 62 would place the Secretary of State under a duty to consult local residents before authorising the use of any new facility within these categories. This is critical for community cohesion and well-being. Removing someone’s liberty is a deeply serious issue and we are extremely concerned about the consequences of this clause for the most vulnerable in our society, particularly children, torture victims, pregnant women and victims of modern slavery. It seems to us that the Home Secretary is moving far beyond the sorts of powers necessary to detain people in an appropriate manner, and this manner at the moment gives us minimal recourse to scrutiny.

The lives, liberty and well-being of fellow human beings should not be put on the line as collateral damage for a policy which most of us know will never achieve its stated aims but is being used for political appeasement. For the reasons I have outlined, I also oppose Clause 10 standing part of the Bill. I beg to move Amendment 58B.

[Lord Scriven (LD)]

My Lords, I shall speak to Amendments 59B, 61A, 64B, 66A and 79C in my name.

Amendments 61A and 66A would ensure that, if children are to be detained or held in temporary accommodation before they are placed with a local authority, there are basic standards in the Bill to ensure that the type of accommodation is suitable, along with the services and standards that are needed to ensure that the best interests and the welfare of the child are paramount, and that the provisions are exactly the same as in the Children Act 1989.

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[Lord Murray of Blidworth (Con)]

The noble Baroness raises an important point. It is obviously right that our guidance reflects the special needs of disabled people in accordance with our duties under the Equality Act. That will continue to be the case. I hope that provides some reassurance for the noble Baroness.

[Lord German (LD)]

My Lords, this has been a very interesting debate, not least because I have seen two lawyers agreeing with each other after having a debate of 10 or 15 minutes about a point of law. It is a fascinating experience.

To turn back to the amendments before us, I thank everyone who participated. In the response the Minister just gave, there are a number of matters which I would like to ask him about. If I understood correctly, he said it is the intention to only allow detention in line with the Immigration (Places of Detention) Direction 2021. I think that is what the Minister said. He then immediately said that, after this Bill is enacted, we will amend it—we will uprate it. I do not quite understand what the uprating mechanism is and why you need to uprate a direction you presently agree with. It would be helpful if the Minister could say what he means by uprating and if they are following the Immigration (Places of Detention) Direction 2021—which, I acknowledge, is the right thing to do.

On Campsfield and Gosport, the Minister said that the capacity would be increased. Could he give an indication of the numbers of places there will be in each of those, or the total for both.

Finally, I have what I consider a bit of a non sequitur, but the Minister said it several times and repeated it today. He said that return agreements are not a prerequisite for returns. I did not quite understand that because if you want to return somebody, you need an agreement that they will be taken. That seems to be an agreement. It was a bit of a non sequitur and certainly did not fall within the wonderful statements we had from the noble and learned Lord, Lord Bellamy, about these matters earlier. If the Minister could address those three questions, I will then be in a position to deal with the amendment.

[Lord Murray of Blidworth (Con)]

As I hope I made clear, once the Bill is passed, the direction will need to be updated, rather than “uprated”. It will reflect the new provisions and any new detention facilities that are available to be utilised at that point. I am afraid that I am not in a position to give the noble Lord an indication of the size at this stage.

On returns agreements, as I think I made clear in a previous group on the second day in Committee, there are different relations with various countries, so circumstances can arise where people can be returned to countries with which we do not have a formal returns agreement. I can write to the noble Lord in more detail on that subject.

[Lord German (LD)]

I thank the Minister for his answer. It would be helpful to know whether the matter of capacity of the two places is just unknown or whether it has not been concluded yet. If that is the case, I presume that the Minister could tell me at some stage what the capacity is.

This has been an important debate and I am sure we will return to it on Report. On the basis of those answers, I beg leave to withdraw my amendment.

Amendment 58B withdrawn.

Moved by

[Lord German]

58C: Clause 10, page 14, line 9, leave out “suspects” and insert “has reasonable grounds for suspecting”
Member's explanatory statement
This amendment probes the threshold for detention.

[Lord German (LD)]

My Lords, we now move to the second area of Clause 10, which is about the powers of detention. The clause significantly expands the current powers and use of immigration detention. It removes the current protections for vulnerable groups and the current limits on the detention of children, which offer UASCs 24 hours, children and families 72 hours, and pregnant women 72 hours. It gives extensive detention powers to the Home Secretary, away from the scrutiny of the courts, removing effective remedies to challenge unlawful or unjustified detention. That upsets the constitutional principle of the separation of powers. I am sorry that one of the lawyers has disappeared, because I would have liked to have raised the matter of the separation of powers whereby, in the past, the courts have determined the appropriateness of how long people will be detained.

The Bill says that it is for the Secretary of State, not the courts, to decide the reasonableness of the period of detention. It therefore weakens judicial scrutiny and removes a safeguard which is especially important for individuals who are particularly vulnerable to harm from prolonged detention. The Hardial Singh principles, which were established through UK case law, place limitations on the Home Office’s detention powers, so that it is for the courts to determine the reasonableness of a given period of detention. Those are the current principles under which the courts operate.

The role of the courts, including the High Court in particular, in reviewing the lawfulness of detention is critical to maintaining the rule of law fully in accordance with the role of the judiciary under the constitutional principle of the separation of powers. In respect of detention, the Bill infringes that principle. I expect that the Minister will talk about habeas corpus, but that is not about the reasonableness of detention; it is about whether it is legal to detain. Clearly, that is a distinction which makes the case I am trying to make more appropriate and important.

Amendments 58C, 58D, 63A and 63B probe the threshold for detention; my noble friend Baroness Hamwee will talk about that in a moment. Leaving out “suspects” and inserting “reasonable grounds” to believe the person meets the four criteria of Clause 2 for removal. The lower threshold of “suspects” requires no evidence; I can suspect that something is happening without evidence, except when I see what I think I am seeing in front of me. However, having a cause for “reasonable grounds” means that there has to be some evidence. It is unclear whether legal advice will be available in presenting their case for the inadmissibility of due process, especially when there will have been no judicial oversight for 28 days, under the Bill.

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[Lord Murray of Blidworth (Con)]

I am grateful for that clarification.

[Lord German (LD)]

My Lords, it has been an interesting debate in which it appears there has been one speaker against and everybody else in favour of changing the Government’s proposal.

To sum up the discussion, with the exception of the Minister, the key issues have been the impact of detention on children, that this is a backward step, that it is not in line with the United Nations Convention on the Rights of the Child and that no evidence is given of a sufficiently robust nature to state the objectives of these clauses. To sum it up in a single phrase, “We are going to lock children up to deter the boats”. The rationale of locking up children has just been put to one side. It is a backward step. Therefore, I am sure we will return to these matters at the next stage of the Bill. In the meantime, I beg leave to withdraw my amendment.

Amendment 58C withdrawn.

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[Baroness Sugg (Con)]

My Lords, I have co-signed Amendment 68, which, as we have heard, would keep the existing protection of a 72-hour time limit on the detention of pregnant women for immigration purposes. I appreciate that the Minister will make a similar closing speech to the one for the previous group, but I want to make some different, practical points on pregnant women specifically. I believe that there is a case for special treatment here.

In our debates on previous groups, my noble friend the Minister warned against introducing loopholes that could be exploited. I do not believe that that will be the case here. This is a narrow amendment. It does not seek to exempt pregnant women from the other provisions in this Bill, such as the duty to remove. It simply ensures that their and their babies’ health will not be put at risk by being detained with no time limit.

There is no evidence to support the suggestion that maintaining the time limit will result in more pregnant women crossing the channel. Women’s groups and experts working in this area do not believe that it will increase the number of pregnant women making these journeys, so I do not believe that there will be an incentive effect. I am not really clear on the reasoning behind that argument. I do not think anyone is suggesting that this will incentivise women to get pregnant so that they can claim asylum. Nor will women take the decision to put themselves and their unborn baby at risk of a dangerous crossing and eventual deportation just because they will not be detained on arrival for more than 72 hours.

If the broader measures in the Bill work as the Government intend and people are swiftly removed to another country, we will not see people traffickers seeking out pregnant women to make the crossing, exploiting a loophole, because they will not be exempt from removal. The risk of the very small number of people on whom this will have an impact absconding is very low, given the desire and need for healthcare when pregnant. Further, where there is a real risk of absconding, Section 60 allows for detention to be extended with ministerial authorisation.

Despite the same arguments being made when this issue was debated in 2016, the 72-hour time limit placed on pregnant women’s detention has not had an incentivising effect on women claiming asylum. Unfortunately, the Home Office does not collect specific statistics on the number of pregnant women claiming asylum, but the number of women claiming asylum annually prior to the time limit was about 7,000. This figure has stayed broadly the same post time limit; there has not been any increase.

Secondly, there is the argument that there will be sufficient protection for pregnant women thanks to existing or updated guidance. I do not believe that that will be the case either. The existing “adults at risk” level 3 does provide some guidance but, as we saw before the Immigration Act 2016, with just guidance, pregnant women were being detained on a far more routine basis than they should be.

During the passage of the Immigration Act 2016, the original proposition was for pregnant women to be protected through guidance but ultimately it was recognised that that just would not be robust enough, and we saw the introduction of the time limit. I appreciate what my noble friend the Minister said in the previous group about updating the guidance following this Bill, but the gap between policy and practice was really only closed through the introduction of a clear time limit in primary legislation which reduced the elasticity of or room for interpretation of guidance. This protection should remain in primary legislation.

There is widespread support for this amendment from across this House, from the other place and from organisations such as the End Violence Against Women coalition, which is made up of 143 specialist women’s support services and experts, from Refuge, the largest domestic abuse organisation in the UK, from medical professionals, and from the Royal College of Obstetricians and Gynaecologists. I will not detain your Lordships by reading out their supporter quotes but, believe me, they are very supportive. I am happy to share them at a more appropriate time.

This is a narrow amendment that would impact just a small number of vulnerable women and keep the protection against detention that pregnant women currently have. It would not create loopholes as it would not exempt women from the duty to remove. The known negative impacts of detention on pregnant women outweigh the un-evidenced—and in my view, incorrect—argument that this will incentivise women to cross in small boats.

This amendment is about protecting women, not putting them at further risk. It would maintain current protections that have been widely acknowledged as working well. If my noble friend the Minister still believes the current time limit should be removed, I would welcome an explanation of the specific reasons for that. I ask him to take into account the widespread support for this narrow amendment and to consider its merits ahead of Report.

[Lord German (LD)]

My Lords, this has been another interesting debate in which there has been one side only, and we face a series of debates where we are looking at fact versus forecasting. All of the speakers who have entered this debate in this short and very narrow area of work have been clear about the issues, which are evidenced—the health and well-being of pregnant women, the effect on unborn children, the dangers of restraint, which have been very well explained.

We are in exactly the same position as we were on the last group. We are asked to make a decision in this Committee based on unevidenced forecasting—in fact, we heard the Minister say earlier that he cannot be expected to look into a crystal ball. That is exactly what the Government are doing here, against all the evidence.

If you think about the number of organisations that have been referred to in this short debate, we are not talking about a small, narrow area of influence; we are talking about huge numbers of organisations representing women throughout this country, human rights and every other sphere you can imagine, believing that this is the wrong way to go. It is the wrong way because we do not have any evidence that it will do the job the Government want it to do.

The Government should stop their crystal ball-gazing to which they directed our attention earlier and concentrate on the evidence they have given. If they cannot provide the evidence themselves, listen to the evidence of the world around us.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, one of the major items in the Bill is the extension of the 72-hour detention of pregnant women. Research carried out in Yarl’s Wood in 2014 found women in detention there often missed antenatal appointments, had no ultrasound and did not have direct access to a midwife.

In a government-commissioned review of immigration detention in 2016, Sir Stephen Shaw stated that

“detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn child and I take this to be a statement of the obvious”.

That point was made by the noble Lord, Lord Alton of Liverpool. It was after this that the 72-hour rule was implemented. It was done for a reason, and to undo it would put women and unborn children at risk of serious harm. The actual number of pregnant women in detention is low. There were nine in 2022, so I would argue—and so, I believe, would other noble Lords who have taken part in this debate—that we are talking about a low number of children. The Government’s argument that somehow, the amendments would provide an incentive are difficult to understand.

However, to the women themselves, who are pregnant, it makes a huge difference. That is accepted by experts and by every lobby group that has written to noble Lords regarding this narrow amendment.

If I was to give a prize for the best speech of this group I would give it to the noble Baroness, Lady Sugg. Her speech was very cogent and well argued. On the other hand, the prize for the most impactful speech would go to my noble friend Lady Lister, who gave a powerful and angry speech. She was also very angry that we are having this debate at this time of the morning. I hope that the Minister will hear the unanimity of view that has been expressed by all noble Lords taking part in this short debate.

Illegal Migration Bill

Lord German Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

At its heart, how many claimants are there from before 7 March who have been refused asylum and are waiting to be deported and where do the Government expect them to be deported to? How many people assumed to be inadmissible since 7 March are waiting to be deported? Where do the Government expect them to go to? What planning assumptions are the Government working to? They will exist within the Home Office. What budget are the Government expecting to use for dealing with all this?

[Lord German (LD)]

My Lords, to help the Minister with the questions he has just been asked, can I add a quite straightforward and simple one? Is it the Government’s intention that return and removal agreements will be made with every country in Schedule 1 to the Bill to which they are seeking to remove people?

[Lord Kerr of Kinlochard (CB)]

My question is even more simple: where is the impact assessment? I think the purpose of impact assessments is to inform the legislative decision. We hear that there will be an impact assessment and it will be produced shortly, but it seems unlikely to be produced while this Bill is being considered in this House. I think that is rather insulting, particularly as the Government rest their intellectual case on the deterrent effect. They say that the numbers will go down as word gets about of how people are to be treated, what “inadmissibility” means and how it is to be applied.

I am strongly against that on legal grounds—I think we should honour our international commitments—and humanitarian grounds, but it is impossible just to consider this argument on its merits if we cannot see the assumptions underlying the Government’s judgment of the impact. The questions from the noble Lord, Lord Coaker, are all extremely apposite and I look forward to the answers to them, but it seems to me that in relation to the deterrent effect, the impact assessment—wherever it is, whenever we will see it—will have to consider why people leave their home country and seek asylum far away. Why are they coming here? Will they be deterred by talk of us getting more brutal? We are going to get more brutal if we pass this Bill, but we are not going to get half as brutal as the conditions of the countries from which they are fleeing—75% of those seeking asylum in this country are found by the processes to have a well-founded fear of death or persecution back home.

Talk of pull factors is all nonsense: it is all about push factors. They are fleeing from horrors, from famine, from massacre, from murder and from war. It is difficult to see the deterrent factor as likely to be to be large, given the scale of the factors that are bringing about the flow. The impact assessment may prove me wrong. Certainly, the Government should, if they have the courage of their convictions, produce the evidence and the assumptions that underlie these convictions, and they should do it before we finish considering the Bill.

--- Later in debate ---

[Lord German (LD)]

My Lords, I have the Clause 3 stand part amendment in my name. A lot of the words already spoken have covered some very important parts of this clause. At its heart, of course, the clause does not protect unaccompanied asylum-seeking children; it just defers their removal. Such children will not be able to start to rebuild their lives or focus on their futures because of the threat of removal. I would like to look at a couple of issues—some of which have been touched on already but which are in this clause—that will need explanation from the Government and understanding if I believe them to be the truth.

On 16 June last year, the United Kingdom Government said in their report to the United Nations Committee on the Rights of the Child:

“The UK remains fully committed to the United Nations Convention on the Rights of the Child”.


Further, they added that they are

“committed to ensuring that the best interests of all children are a primary consideration in any decision that affects them”.

So, my first question to the Minister is: do the Government stand by that second statement: that all children are a primary consideration in any decision that affects them?

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I signed the intention to oppose the Question that Clause 4 stand part of the Bill.

I do not often say anything good about this Government but they do, at times, think outside the box. They really do think up novel practices and novel moves in all sorts of areas. I admire massively the people who have gone through this Bill and put amendments forward. Sometimes I have time to do that myself on Bills. This particular clause is so bad—how can we improve it? There are two particularly dangerous proposals, which we have already heard. The first is that the courts will not be able to pause or prevent a deportation, even where that deportation will be clearly unlawful. Secondly, the Government can, by diktat, declare a person’s human rights as inadmissible. Where does that come from? Who thought that up? It is just incredibly creative. As it is novel practice, it is also dangerous. A precedent is being set that the Government can simply rule that some people do not have any human rights and that a Government can act unlawfully without any intervention from the courts. Human rights are for everyone—which is something this Government seem to forget—or they are not human rights. The courts must be allowed to protect those rights against the Government.

We have to stop this illegal Bill. I see no option but to start voting out chunks of it. If we can possibly intervene at the end, we should vote all of it down.

[Lord German (LD)]

My Lords, I have given notice of my intention to oppose this clause standing part. I was also able to meet the Bar Council this morning, and it was very interesting to hear its views about current practices and the difficulties following through from this law that might arise.

I want to address two or three issues in this clause which set it apart. I of course support wholeheartedly the human trafficking amendment. I talked at Second Reading about a case involving a young person who, if the current Bill were to become an Act, would be placed in perpetual slavery or alternatively deported to somewhere she has no knowledge of and no friends or people she could communicate with.

The two issues I will look at are the impact this will have upon this country and whether the Minister is going to be able to tell us whether or not the fears that people have expressed are actually true. One of the first ones is the fear of people living in limbo for years and years. The second one is about whether it is disgraceful lawyers and traffickers who have caused the problems we are now facing. I am very grateful to the noble Lord, Lord Carlile, for debunking the issue of lawyers having that responsibility put upon them by what he called the Daily Mail sidebars.

It is important to realise that there are a significant number of issues sitting behind this clause which will affect people profoundly. Essentially, this clause is the Government’s trump card upon which it can play: there is no way you can come to this country if you are one of the vast and overwhelming majority of people seeking asylum from the fear of living in countries which are under siege or war, or where people’s reputations are at risk.

We hear today that government papers which have been put aside—unless some people have spotted them—say that in the first two years between £3 billion and £6 billion extra will be required to make sure that they can cope with the number of people living in limbo. These sorts of government papers do not just fall into hands, because somebody else outside of government has written them. The figures themselves must have some credibility. They hold truth and light for those who believe that there is no way that people can be sent elsewhere under this Bill, given the limited circumstances.

I ask the Minister to repeat his claim that there is no limit on the number of people who can be sent from this country to Rwanda. No limit, he said—does that mean 150,000 or 170,000? Is that the case? We heard this morning from the lawyers who were dealing with the very small number of cases attempting to bring people back from Rwanda who had had their claims misheard that the Government did not tell them about the circumstances surrounding their existence in that country. One of the barristers concerned found out that it is an offence in Rwanda to speak out against the Government. That issue was the one that played a big hand in them being able to work around the legislation to be able to bring back incredibly small numbers of people to our country.

The third issue is the assertion by the Minister earlier that this is an emergency. If it is an emergency then obviously it is an emergency that has been going on for many years. The claim by the Prime Minister this morning that the policy we are talking about is already working is not borne out by the figures that the Government themselves provided on 25 May. Those are the only figures that are available to see, and this Government have an adverse nature to giving figures to us in any other way.

Illegal Migration Bill

Lord German Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

Debate on whether Clause 1 should stand part of the Bill.

[Lord German (LD)]

My Lords, on behalf of my noble friend Lord Paddick, who will respond later, I am pleased to suggest the deletion of Clause 1, largely because some parts of it have been scrutinised in huge detail but it has not had that scrutiny as a whole. Also, I suspect that many Members of the Committee are waiting for answers to some of the questions that they raised in the earlier debate. I particularly enjoyed the company of noble and learned Lords of all varieties. During the break, I was trying to think what we might call a collection of lawyers giving such erudite opinions. I have perhaps alighted on “a mêlée of lawyers”. It was interesting that, while they had very different views about what was happening, it was clearly not as simple as saying, “This will be the way in which matters arise from the clause”. We have not yet reached an understanding of the legal position, certainly on Clause 1(5).

The clause is the prism through which the whole Bill is understood. It speaks to its true purpose and impact: to prevent and deter people arriving in the UK irregularly by the threat of their removal, regardless of the rights and conventions disregarded in the process.

While stopping the boats has been the headline, at its heart this Bill enables removal as its primary aim and, in mandating it by statute, people will not have a chance to put their case for asylum in the UK and never be able to acquire leave to remain. There will be extremely limited opportunity for judicial oversight and detention powers will be significantly enlarged.

This is deeply concerning, and it is an approach for which the Government are not even able to provide an impact assessment to demonstrate its efficacy—we have been promised it, but it has not yet been published. Thankfully, the Refugee Council has done an impact assessment based upon the statistics and figures produced by the Home Office, so it would be useful to know, in his reply, how the Minister intends to answer this impact assessment, which is based upon their own figures, without providing the evidence themselves to be able to combat it.

I will not go through the whole detail of the impact assessment produced by the Refugee Council but will focus on some of the headlines. They say that, in the first three years, 30,000 people will be sent to Rwanda; the Government have said that is the total number of people who can be accommodated in Rwanda. Some 257,000 will have their claims rendered inappropriate, undesirable and certainly not admissible. Of those 257,000 people, 45,000 will be children.

Some 193,000 inadmissible people will remain in the United Kingdom because, apart from Rwanda, there is nowhere else to send them. They will be stuck in limbo indefinitely until such time as an alternative can be found. The cost of keeping that number inside the United Kingdom, based upon the current estimates provided by the Home Office, will be £9.6 billion in those first three years. On top of that, we have to add on the 181,000 people still inside the United Kingdom who are waiting for a decision.

It is doubtful, to put it mildly, that this will act as a deterrent to the boat owners. We are currently 20th in Europe, by headcount, on receiving migrants and therefore we are nowhere near the top of the league. The question for the Minister is: does he accept that these figures, which have been produced based upon their own, are correct? If they are not correct, when will we have the evidence to say that they are not?

In excluding the application of Section 3 of the Human Rights Act to those covered by the Bill, there is an expressed acknowledgement that the Bill risks putting human rights at bay. It is interesting that paragraph 5 of the Government’s own European Convention on Human Rights Memorandum says that Clause 1(5), which removes Section 3,

“does not affect the Government’s assessment of compatibility of the Bill with the Convention rights”.

If that is true, I would like the Minister to tell me whether the removal of Section 3 of the Human Rights Act, as contained in Clause1(5), will still mean that those who are seeking refuge here in the United Kingdom will be afforded the rights under the convention, which says that they will be allowed to have their case heard quickly by those who are detaining them. That is a right under the convention. Is that in contradiction to what the Government are proposing, and is it in contradiction to paragraph 5 of the memorandum which the Government have provided?

The concern, which has not yet been answered clearly and to the satisfaction of many Members of this Committee, about the human rights matters and Section 3 of the Human Rights Act, is a concern also highlighted by the Equality and Human Rights Commission, which of course advises the Government. It advises them that it will create a two-tiered system of human rights protection in this country, whereby an individual’s human rights will be interpreted solely on the basis of how they entered the United Kingdom. That is wrong: a human right is a human right, regardless of whoever that human being is. Here, we are talking about some of the most vulnerable people in the world: the female political activist from Iran; the gay man from Uganda; the young man escaping forced conscription in Eritrea; a family fleeing war in Sudan. Those are the people who are going to be affected most by this clause and this Bill.

The provision of Section 3 is an essential mechanism through which courts can correct human rights violations and enable individuals to access justice. It is a basic moral requirement for governing and one which is in the convention. In its report on the Bill, our Select Committee on Constitution confirmed there has been no Act of Parliament which has yet sought to disapply Section 3 of the Human Rights Act 1998. By its application, Section 3 has also reduced the number of people currently pursuing litigation in Strasbourg because they have been able to secure justice domestically. This clause therefore brings with it the potential for extensive litigation in the future. Any observer of the proceedings on the previous group of amendments will have noted that this may well provide a fair playing field for lawyers as these legal battles develop down the line.

In taking this approach in Clause 1, the Government have accepted the likelihood that they could possibly lead to the UK breaching its international obligations. That puts us on that collision course with the Council of Europe and the ECHR. Having the High Commissioner for Human Rights send a letter to the Lord Speaker, in order that all Members of your Lordships’ House should be able to see the views of the human rights commissioner, was most telling. The last but one sentence was a message to all of us from the commissioner:

“it is now essential that Members of Parliament and Peers prevent legislation that is incompatible with the UK’s international obligations being passed”.

That is the chilling message for us.

I heard earlier about the impact on the rule of law and the way in which these matters will be interpreted by those who look at the reputation of the United Kingdom. I noted the words of the noble Lord, Lord Hannay, in the previous debate. The implications for how people will look at this country seem not yet to have been considered.

The fact that all the provisions in the Bill will have to be read in line with this clause means that it has profound cross-cutting detrimental implications for human rights. Parliament is here as the supreme lawmaker in the United Kingdom, yet this Bill hands broad lawmaking powers, which implicate fundamental human rights, to the UK Government in the form of delegated powers and explicit shifts of power. Our democracy depends on there being a clear separation of powers, and this Illegal Migration Bill represents an attempt at a power shift which enables the UK Government to play the roles of all three branches of state: lawmaker, adjudicator and administrator. In undermining the separation of powers in this way, both the UK’s constitution and our democracy is diminished.

Clause 1 is an extreme assault on the ability of people to have a fair hearing in the UK. The rule of law is essential, and undermining that will upset the influence we have as a country across the globe. The stated purposes, as I outlined at the beginning of the speech, to detain people and send them away from the United Kingdom without having their cases heard, will undoubtedly be debated further in the clauses that are to follow. However, it makes me feel very sad that, at this point, this clause, which lays out in such detail the purpose of the Bill, is one that runs so counter to the principles we uphold as a nation.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

My Lords, Clause 1 sets out the Bill’s overarching purpose and provides an overview of the provisions in the Bill. The purpose of the Bill is to prevent and deter illegal migration and, in particular, migration to the UK by unsafe and illegal routes, by requiring the removal from the UK of individuals who arrive in breach of immigration control.

Subsection (2) then summarises the key provisions of the Bill that advance this core purpose, including the duty on the Secretary of State to make arrangements for the removal of persons from the UK who meet the conditions in Clause 2.

The numbers arriving on small boats in 2022 exceeded 45,700, and, as I set out at Second Reading, the Bill is essential to deal with these illegal, dangerous and unnecessary channel crossings. Putting the purpose of the Bill front and centre, right at the start of the Bill, will make it abundantly clear to all, including the illegal entrants themselves, NGOs, the courts and others, what Parliament’s intent is in enacting this Bill. As subsection (3) provides, the subsequent provisions in the Bill should be interpreted by the courts and others in line with this statutory purpose. Again, it is incredibly helpful to make this explicit on the face of the Bill, although I should add that subsection (3) simply reaffirms the established principle that the courts and others should interpret the Bill to deliver its purpose.

To assist this purpose, Clause 1 also disapplies Section 3 of the Human Rights Act 1998. As I have already explained in the previous debate, the disapplication of Section 3 will ensure that the Bill’s provisions will be interpreted to meet the legislative intent of Parliament, rather than strained interpretations by the courts to achieve compatibility with convention rights.

The noble Lords, Lord German and Lord Paddick, asked about the impact assessment. We have already published an equality impact assessment and will publish an economic impact assessment in due course. The noble Lord, Lord German, referred to the purported impact assessment published by the Refugee Council. We do not recognise the assumptions and costs referenced in that document. Any assessment of the impact of the Bill must also acknowledge the cost of not proceeding with it. Our broken asylum system is costing this country £3 billion a year, and over £6 million a day in hotel costs. This cannot continue. The noble Lord also seems to be labouring under an assumption that Clause 1—

[Lord German (LD)]

The noble Lord has made two points. I am particularly asking about this sentence in the Government’s ECHR memorandum—so the Government’s position. It says at paragraph 1.5 about the removal of Section 3 of the Human Rights Act:

“This does not affect the Government’s assessment of compatibility of the Bill with the Convention rights”.


Article 5 of the convention clearly states:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court”.


So is the paragraph in the memorandum compatible with what I have just read out? If so, it means that when people are detained, they will be able to take their cases to a court in this country.

[Lord Murray of Blidworth (Con)]

The answer to the question, if I have understood the noble Lord, is yes, but I think he misinterprets the purpose of Section 3 of the Human Rights Act. It is not the clause by which the articles of the European Convention on Human Rights are reflected in UK domestic law. Section 3 of the Human Rights Act invites a court to construe parts of other domestic statutes or secondary legislation compatibly with convention rights. It does not mean that this is the mechanism by which convention rights are actionable in UK law, which is the standpoint that I think the noble Lord, Lord German, appears to suggest is the basis for his point. I fear that, as a matter of legal analysis, I think that to be wrong.

The noble Lord also seems to be labouring under an assumption that Clause 1 somehow upsets the separation of powers. It does not. It simply makes it clear that in interpreting this legislation, judges should seek to advance the purposes of the Bill. The Bill, and actions taken under it, are still clearly capable of review in the courts, and individuals can seek to prevent their own removal by making a suspensive claim. So, the courts are still involved, and regulations are still subject to approval by Parliament. I hope the noble Lord can rest assured that on closer inspection, this Bill leaves our separation of powers undisturbed.

I also want to pick up on a point made by the noble and learned Lord, Lord Hope, who suggested that the Bill prevents human rights challenges. This is simply not the case. The Bill provides for two kinds of challenges that would have the effect of suspending removal. Other legal challenges, whether on European Convention on Human Rights grounds or other grounds, are not precluded, but they do not suspend removal. As I have indicated, Clause 1 makes the purpose of the Bill crystal clear for all to see. This will help to guide all decisions made by officials and immigration officers, Ministers, the courts and others in giving effect to the Bill. I commend the clause to the Committee.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

The Government do not recognise the figures in the purported impact assessments provided by the bodies that were referred to, such as the Refugee Council, because we do not recognise the assumptions and costs referenced in them. Furthermore, those documents do not acknowledge any assessment of the impact of the effect of not proceeding with the measures in the Bill.

[Lord German (LD)]

What is the Minister’s definition of “soon”, which he said was when we would receive the impact assessment? Will it be before the end of Committee, before the start of Report or after Report and before Third Reading? Perhaps he could be more explicit.

[Lord Murray of Blidworth (Con)]

The impact assessment will be provided when the decision is taken that it is appropriate to disclose it.

--- Later in debate ---

[Noble Lords]

Oh!

[Lord German (LD)]

Does the Minister therefore think that it is appropriate that the body which is deciding about this Bill—Parliament—should receive the impact assessment, and should that impact assessment be with us before we complete Committee on the Bill? Surely that is appropriate. It is not for the Government to decide. It is for the Government to make their case to Parliament. If they cannot do so, because they have not got the document, because the document is not sufficiently robust or because it is not available, then the Minister should be able to tell us that right now, so that we know the basis on which we are judging this Bill.

[Lord Murray of Blidworth (Con)]

I am afraid that I can tell the noble Lord only that it will be published in due course and that this is entirely normal.

--- Later in debate ---

[Baroness Bennett of Manor Castle (GP)]

My Lords, I will go where I was going without being distracted. I am aware that there is no Green group name on any of these amendments, which is the result of an administrative hitch earlier in the week, so I will be very brief—I am also aware of the hour. I shall make just three points about this group of amendments.

First, we have discussed the issue of retrospectivity a great deal. I align myself with the comments of the noble Baroness, Lady Chakrabarti, among many others, who talked about approaching this as a lay person, which indeed I do as a non-lawyer. However, I have had a lot of contact with the law through my time as a journalist, and one of the things you learn is that the nature of the law is that they do not make laws retrospectively. That is in the general public understanding of what is law, so I associate myself with all the anti-retrospectivity amendments.

However, I particularly want to address Amendment 91, to which there has not been much attention given, which aims to prevent victims of human trafficking and modern slavery from having their leave retrospectively revoked to permit their deportation. This is leave granted to people under the Nationality and Borders Act 2022. I am sure many noble Lords taking part in this debate can think of victims of trafficking and modern slavery whom they have met. I am thinking of one in particular, whom I will not identify in detail. She was a person who had clearly been enormously mentally scarred by the experience of losing control of her own life and being a slave. To think that we would put them in this position again, having granted them status and then snatched it away, highlights the emotional damage that that would do to people.

Secondly, my favoured position is to write out this whole Bill but, if we do not do that, then that Clause 2 should not stand part. The noble Baroness, Lady Lister, made a powerful speech on this point. I want to raise a point no one else has raised. I ask the Minister to answer, although I expect he will be reluctant to, so maybe some of the other legal minds in the Committee can be put to this. Let us imagine that, after the next election, we have a change of government, and there has been written into law a duty for the Secretary of State to deport people. There is going to have to be an emergency Bill passed as soon as possible to stop that. I very much hope that would be the case for whoever the next the Government are. But there is going to be a total legal mess, I would imagine, when the people of the country have elected a Government standing on a different platform—I would hope—but that is the law of the land. I am not sure where that would leave us; I do not know if anyone could help me with that one.

I also want to address why the duties to remove in Clause 2 should not remain. Some 90% of the people in need of international protection who come to the UK could not do so directly as defined by this Bill. The refugee convention prohibits states from imposing penalties on refugees for how they have entered the country, because most people have no choice but to enter a country irregularly. The convention explicitly states that you do not have to come directly to the country; there is no requirement of “first safe country”. That is the convention, yet we are writing this piece of this Bill. This clause simply must not stand part.

Thirdly, I want to identify particularly with Amendment 8. The noble Lord, Lord Cashman, and the noble and learned Lord, Lord Etherton, have already made this argument very powerfully. All I want to say is that my Second Reading speech addressed this issue at some length, and I would like to stress the Greens’ support for Amendment 8 in particular.

[Lord German (LD)]

My Lords, there are two matters in this group that are in my name, but I shall address just one of them briefly—the other matters having been covered by earlier speakers—and that is the issue about coming directly to the United Kingdom.

The UNHCR, in its legal opinion, says that the vast majority of people in need of international protection will meet those criteria of not being able to come directly to the UK. Almost 90% of people in need of international protection globally come from countries where it is impossible to come directly to the UK—there are no direct flights, nowhere to get a visa, nowhere to make any of the paper arrangements we have set up. We will come to the issue of safe routes later, but the question I have to ask relates to the role of the UNHCR in supporting those who are in need of protection.

Apart from the one relating to Afghanistan, the UNHCR states that there are only two active legal resettlement schemes in the UK. The first is the UKRS, which is the UK resettlement scheme. Since 2020, the UNHCR

“has been requested by the Government not to submit new cases other than in extremely compelling circumstances and on an ad-hoc basis, amounting to a handful per year”.

The second one is the mandate resettlement programme, which provides a pathway for refugees:

“An average of fewer than 25 people a year come to the UK on this route. … they must be identified and referred by UNHCR in accordance with criteria agreed upon with the receiving State”.


So, essentially, the UNHCR has been told that it can have probably about 25 and perhaps five or six more. That is the total—apart from the Afghani stream—from the resettlement schemes that are open. In his reply, perhaps the Minister could tell us how people can get to the UK directly from the places from which they are seeking refuge, and also how these people can be filtered so that only the 30 or so people who can currently come per year will be accommodated.

[Lord Paddick (LD)]

My Lords, this group covers a wide range of amendments concerning the duty to make arrangements for removal. To summarise, it shows that the Government have not thought through the issues that arise from Clause 2. The noble Lord, Lord Carlile of Berriew, and the noble and learned Lord, Lord Etherton, have spoken compellingly about the unfairness and uncertainty of retrospection. My noble friend Lady Hamwee spoke about the impact on unaccompanied children affected by the retrospection caused by Clause 2. My noble friends Lady Suttie and Lady Ludford spoke about the extreme dangers around the impacts of Clause 2 on the arrangements between the north and south of Ireland. The noble and learned Baroness, Lady Butler-Sloss, spoke about the perhaps unintended consequences of impeding the prosecution of traffickers and perpetrators of modern slavery.

The noble Lord, Lord Cashman, and the noble and learned Lord, Lord Etherton, spoke about neglecting issues around sexual orientation and gender identity, which could be an extreme risk to people if they were to return to certain countries; they are completely left out of the Bill. My noble friend Lord German raised the important point about what it means when somebody has not come directly to the UK, and what the higher courts in this country have said about that. It was debated endlessly during the passage of the Nationality and Borders Act but goes even further in this Bill, which is why Clause 2 should not stand part of the Bill.

Iranian Islamic Revolutionary Guard Corps

Lord German Excerpts

Tuesday 23rd May 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, I do not believe that it is shilly-shallying. As I said, it remains under active discussion among many departments in government.

[Lord German (LD)]

My Lords, I want to take the Minister’s view on what active consideration means. On 26 March, it was reported that Tom Tugendhat, the Minister, met campaigners for proscription and told them that there would be proscription—that the Government were going to proscribe—but that he could not give them a date upon which that proscription was going to take place. Has such a conversation taken place? Have the Government taken a decision but are not yet ready to tell us?

[Lord Sharpe of Epsom (Con)]

I am familiar with the meeting referred to by the noble Lord. Mr Beheshti met the Security Minister on 29 March, following which Mr Beheshti uploaded a video recording of the meeting and stated, as the noble Lord has just outlined, that the Government are intending to do this. The formal read-out from the meeting confirmed that, unfortunately, Mr Beheshti had misinterpreted the content of the meeting.

Former Chief Constables: Gross Misconduct

Lord German Excerpts

Monday 22nd May 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

The noble Lord makes a very good point. As he knows, in the case he describes, the usual and correct procedure was not followed in that county. I am very pleased it has finally been followed, so I agree with him.

[Lord German (LD)]

My Lords, this House owes a debt of recognition to the noble Lord, Lord Lexden, for his perseverance in this matter. Of course, there are obviously serious matters relating to the relationship between police officers and the law. I wonder if the Minister would care to comment on the words of the chief constable of the BTP, the transport police, who says:

“If I was to commit a crime, get arrested and give my details, there is no obvious system check that would flag that I’m a police officer if I didn’t choose to tell them”.


Does the Minister think that is an issue? If it is a problem, what are the Government doing to solve it?

[Lord Sharpe of Epsom (Con)]

I join the noble Lord in praising my noble friend’s commendable tenacity on this subject. Regarding the circumstances the noble Lord describes, I was not aware of them. Of course, he will also be aware that we have launched a review, which concludes this month, into the whole misconduct and dismissals process. With a bit of luck, it will report back in the next month or two, according to the Policing Minister in the other place. It will include a number of these issues, and I hope that will be dealt with then.

Police, Crime, Sentencing and Courts Act 2022 (Extraction of information from electronic devices) (Amendment of Schedule 3) Regulations 2023

Lord German Excerpts

Monday 22nd May 2023 Grand Committee

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, the extraction of information powers introduced in the Police, Crime, Sentencing and Courts Act 2022 have provided a statutory basis for police and other authorised persons to obtain information from electronic devices to support investigations.

These powers came into force last November, along with a code of practice that provides guidance to authorised persons to ensure that the powers are used appropriately and effectively. They can be exercised by the authorised persons named in Schedule 3 to the Act. This is divided into three parts, which set out the different purposes for which authorised persons may exercise the powers. It is crucial that authorised persons extract information only for the purposes set by the part of the schedule in which they are placed.

At present, the Royal Navy Police, the Royal Military Police and the Royal Air Force Police can extract information only for the purposes set out under Section 37 of the Act:

“preventing, detecting, investigating or prosecuting crime … helping to locate a missing person, or … protecting a child or an at-risk adult from neglect or physical, mental or emotional harm”.

These regulations will amend Schedule 3 so that the Royal Navy Police, the Royal Military Police and the Royal Air Force Police are moved from Part 2 to Part 1 of the schedule. This change will allow these police forces also to extract information from a deceased person’s electronic device, using the power in Section 41, for the purpose of an investigation or inquest into that person’s death.

Electronic devices such as mobile phones contain a wealth of personal information and can be helpful in an investigation when someone has died in unexplained circumstances. Although data protection regulations do not apply to deceased persons, we must still ensure that information extracted from an electronic device where the user of the device has died is handled appropriately and sensitively. Additionally, an electronic device such as a mobile phone or laptop is almost certain to contain information about living people, so the authorised person will still need to be satisfied that extracting such information is necessary and proportionate.

The powers under Section 41 of the Police, Crime, Sentencing and Courts Act 2022, much like the powers under Section 37 of the Act, can be exercised only where the authorised person reasonably believes that there is information on the device that is relevant to the purposes set out under this section—in this case for an investigation or inquest into a person’s death. It is vital that these intrusive powers are available only to the authorities that need them. When the Bill was passed, it was not yet agreed that the Royal Navy Police, the Royal Military Police and the Royal Air Force Police had sufficient investigative requirement to use Section 41 powers or that their investigative needs could not be met with other existing powers.

Having taken time thoroughly to consider their case, we are now in agreement with these police forces that their investigative duties meet the requirements for use of the powers and that, without access to them, there may be a gap in their ability lawfully to extract information in these circumstances. For this reason, we are amending their position in Schedule 3 to ensure that they can investigate the death of a person as thoroughly as possible. This amendment will ensure that the Royal Navy Police, the Royal Military Police and the Royal Air Force Police have the same powers to extract information from electronic devices as civilian forces. It will also provide them with the ability to carry out their investigations as thoroughly as possible by giving them the ability to extract information from a deceased person’s device for the purpose of an investigation or inquest into that person’s death.

I very much hope that noble Lords will support this amendment to Schedule 3 of the Police, Crime, Sentencing and Courts Act 2022. I commend the regulations to the Grand Committee and I beg to move.

[Lord German (LD)]

My Lords, this is a straightforward piece of secondary legislation, adding the Royal Military Police, the Royal Air Force Police and the Royal Navy Police to the list of people who can exercise extraction of information powers under Section 41 of the Police, Crime, Sentencing and Courts Act 2022.

First, I declare what may be a tangential interest: I have a son-in-law who flies jets for the RAF. I would never have thought about it, but it is possible that his and my family would be affected if Section 41 powers were to be used in the event of his untimely death, if that were to happen.

I have two questions to ask the Minister. They relate to the guidance in the extraction of information code of practice, which was provided in relation to the Act and as a result of the words of the Information Commissioner, who believed that this was necessary. I am pleased that it is provided.

My first question relates to paragraph 69 of the guidance, which talks about the use of a mobile phone device “around the time of” the death of the person concerned. It uses the words “the user”. Earlier, in relation to Section 37 of the Act, the code of practice talks about where people are not necessarily the owner of the phone or mobile device. It distinguishes clearly people who own a phone from people who have a phone which is owned by somebody else—something we parliamentarians know because we have a parliamentarian phone that is not our property but is used for all sorts of communication, as well as for the business of Parliament. I do not expect the Minister to have an answer yet, but could there be some clarification of paragraph 69 that refers back to the earlier information given in the code of practice to say exactly what it means about a shared-user phone?

My second question is about paragraph 90 of the code and current practice among police forces to keep up to date with technology in order to separate personal information from necessary information related to the event being investigated—the death, criminal event or whatever. Does the Minister have any information about whether police forces of all sorts are using similar technology? The real problem, which is quite obvious, is that there is a variety of technological options available to police forces and they may all be using different ones. That means that they may not necessarily be able to do what is required in the code of practice and keep up to date with

“the technology options available in their organisations”.

There may be a question here—again, the Minister may not be able to answer it now—about whether the technology available to police forces is of sufficient robustness to allow them to be ahead of the game and whether there is one piece of software that is recommended for police forces to use.

With those two questions, I am perfectly satisfied that this is a sensible piece of legislation.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too am happy to say that this is a straightforward statutory instrument, and we are happy to support it from the Labour Party’s point of view. The SI adds members of the Royal Navy Police, the Royal Military Police and the Royal Air Force Police to those given the power to extract information from a device after a user of that device has died, as part of an investigation or inquest into the death, to investigate crime and to safeguard others.

I think it is fair to ask the Minister why these police forces were left out of the original Bill. Was there a particular reason, or was the consultation process not complete?

The Labour Party tabled a series of amendments to the PCSC Bill creating new checks on police powers to extract data from electronic devices. This was due to concerns about vulnerable people and the intrusive nature of these searches—in particular, for rape and sexual abuse victims, who can feel that requests for information, including digital information taken from their phone, can be overly invasive and collect highly personal information that is not relevant to the inquiry. It may make people more reluctant to come forward to the police if they know that they will get this interrogation of their phones.

I understand that this SI covers something different—cases in which the owner of the device has died—and we are happy to support this amendment. However, I would still like to ask the Minister what assurance he can give about how devices and information taken from them will be handled sensitively so as not to discourage potential victims and witnesses from coming forward.

There have also been serious concerns about digital resources and the use of digital information by the police, outlined in the report last year from His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services. Can the Minister give any update on what action is being taken and whether any specific concerns have been raised about the use of digital items by the forces being given additional powers today? That is a more general question; the two questions raised by the noble Lord, Lord German, are very pertinent, so I shall be interested to hear the Minister’s response on shared-user phones and what impact the measure would have on them, as well as on the interoperability of different technologies and different police forces, as I am sure that that will be a tripping block. I am sure that it is not the intention to create any problems but it is always difficult, in my experience, to get different sources of technology to work together in a seamless way. That seems to be a challenge facing businesses, police forces and everybody battling with new digital technologies. However, overall, we support this SI.

--- Later in debate ---

On ensuring that the technology is, in essence, future-proofed in the code of practice, the Extraction of Information from Electronic Devices: Code of Practice will always be updated to reflect changes being made to Schedule 3, but changes to the code of practice can be made only by regulations made by statutory instrument and require a duty to consult with others. It will be updated when other significant amendments need to be made. I think that covers future-proofing in its various forms. Of course, it is very difficult to say whether the technology is adequate until it has been invented.

[Lord German (LD)]

Just to interrupt the Minister for a second, I was asking whether a common set of software is used across police forces.

[Lord Sharpe of Epsom (Con)]

I am coming to that. There is a digital evidence programme, because the Government are determined to address the challenges associated with selectively extracting, analysing and reporting digital evidence gathered in criminal investigations, as we have been discussing.

We are supporting the Police Digital Service with £1.36 million in 2023-24 to undertake work to better understand the challenges in this area and to work with the private sector to develop and test new technologies. The evidence programme has been set up with a wide range of deliverables, including landscape reviews of force capabilities and gaps; creation of a new RASSO tech partnership board, bringing actors across policing together with the private sector—please do not ask me what the acronym RASSO stands for; development and testing of a range of private sector tech products within police forces; and, through the ACE impact lab process, working with technology companies to develop innovative solutions to key RASSO problems. The work is focused on solving the problems that victims experience and the selective extraction, analysis and reporting of digital evidence. It is fairly safe to say that all the questions asked of me by the noble Lord will be covered under that piece of work.

National Crime Agency Investigation: Javad Marandi

Lord German Excerpts

Wednesday 17th May 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

The noble Lord will be aware that I cannot comment on ongoing investigations; no Minister at the Dispatch Box would. With regard to Mr Marandi’s status in the United Kingdom, he is a citizen of this country, as I am sure the noble Lord is aware, and his honours and so on are a matter of public record. As for political donations, UK electoral law already sets out a robust regime of donations and controls to ensure that only those with a legitimate interest in UK elections can make political donations, and that political donations are transparent. It is an offence to attempt to evade the rules on donations by concealing information, giving false information, or knowingly facilitating the making of an impermissible donation. I think this structure is pretty robust already, and a large number of various Bills, strategies and so on have recently been published which contribute to this debate.

[Lord German (LD)]

My Lords, all political parties have had problems with political donations. For that reason, the Liberal Democrats have put in place a stringent, robust system to protect our integrity. I think the Minister was referring to an Answer given by the Minister in the House of Commons, when he said that our

“electoral law sets out a stringent regime of donation controls”.—[Official Report, Commons, 16/5/23; col. 701.]

Manifestly, it does not do that. It specifies who can give donations but not where that money might come from. So far from being stringent, there is now a danger that laundered money may have been introduced into our democratic processes. If the system is as stringent as the Government make out, how was it possible for the Conservative Party to accept donations from this individual while the laundromat investigation was ongoing?

[Lord Sharpe of Epsom (Con)]

My Lords, I am going to repeat what I have said: there is a long-standing principle, first introduced by the Committee on Standards in Public Life in 1998, that if you are eligible to vote for a party in an election, you are also eligible to donate to that party. That includes overseas electors, as noble Lords will be aware, with reference to the Elections Act. Coming back to that Act, I remind the House that the Government have already taken significant steps to strengthen the integrity of our elections and update our electoral law. This was done to ensure that our democracy remains secure, modern, transparent and fair. I could go on in considerable detail about the Elections Act, but it has been much debated in this House.

Vagrancy Act 1824

Lord German Excerpts

Wednesday 17th May 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, the Government do not collect figures on the police usage of the Vagrancy Act and as the police are operationally independent, we cannot comment on figures. The Ministry of Justice figures on prosecution show that it is a very small number of people. There were four prosecutions for sleeping out in 2021 and 459 prosecutions for begging in 2021.

[Lord German (LD)]

My Lords, this is a very important piece of legislation which the Government are seeking to provide. Can the Minister give us an assurance that the Bill, or whatever the legislation is, will be delivered and completed by the next general election?

[Lord Sharpe of Epsom (Con)]

I cannot give that assurance but, as I said, last year we consulted on options for replacement legislation, along with other stakeholder engagement, and we are considering those complex issues carefully. The Government will publish responses to the Vagrancy Act consultation in due course. As soon as parliamentary time allows, that legislation will appear in front of your Lordships.