Illegal Migration Bill

Lord Murray of Blidworth Excerpts

Wednesday 8th March 2023 Lords Chamber

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

My Lords, I shall now repeat a Statement made yesterday in another place by my right honourable friend the Home Secretary:

“With permission, Mr Speaker, I would like to make a Statement about the Government’s Illegal Migration Bill. Two months ago, the Prime Minister made a promise to the British people that anyone entering this country illegally will be detained and swiftly removed—no ifs, no buts. The Illegal Migration Bill will fulfil that promise. It will allow us to stop the boats that are bringing tens of thousands to our shores, in flagrant breach of both our laws and the will of the British people.

The United Kingdom must always support the world’s most vulnerable. Since 2015, we have given sanctuary to nearly half a million people through family resettlement and global safe and legal routes. These include 150,000 people from Hong Kong escaping autocracy, 160,000 Ukrainians fleeing Putin’s war and 25,000 Afghans escaping the Taliban. Crucially, these are decisions supported by the British people precisely because they were decisions made by British people through their elected representatives, not by the people smugglers and other criminals looking to break into Britain daily. For a Government not to respond to waves of illegal arrivals breaching our borders would be to betray the will of the British people whom we are elected to serve.

The small boats problem is part of a larger global migration crisis. In the coming years, developed countries will face unprecedented pressures from ever greater numbers of people leaving the developing world for places such as the United Kingdom. Unless we act today, the problem will be worse tomorrow, and the problem is already unsustainable.

The volume of illegal arrivals has overwhelmed our asylum system. The backlog has ballooned to over 160,000. The asylum system now costs the British taxpayer £3 billion a year. Since 2018, some 85,000 people have illegally entered the United Kingdom by small boat—45,000 of them in 2022 alone. All travelled through multiple safe countries in which they could and should have claimed asylum. Many came from safe countries, such as Albania. The vast majority—74% in 2021—were adult males under the age of 40, rich enough to pay criminal gangs thousands of pounds for passage.

Upon arrival, most are accommodated in hotels across the country, costing the British taxpayer around £6 million a day. The risk remains that these individuals just disappear. And when we try to remove them, they turn our generous asylum laws against us to prevent removal. The need for reform is obvious and urgent.

This Government have not sat on their hands. Since the Prime Minister took office, recognising the necessity of joint solutions with France, we have signed a new deal providing more technology and embedding British officers with French patrols. I hope Friday’s Anglo-French summit will further deepen co-operation.

We have created a new small boats operational command, with over 700 new staff; doubled NCA funding to tackle smuggling gangs; increased enforcement raids by 50%; signed a deal with Albania, which has already enabled the return of hundreds of illegal arrivals; and we are procuring accommodation, including on military land, to end the farce of accommodating migrants in hotels.

But let us be honest: it is not enough. In the face of today’s global migration crisis, yesterday’s laws are simply not fit for purpose. So to anyone proposing de facto open borders through unlimited safe and legal routes as the alternative, let us be honest: by some counts there are 100 million people around the world who could qualify for protection under our current laws. Let us be clear: they are coming here. We have seen a 500% increase in small boat crossings in two years. This is the crucial point of this Bill. They will not stop coming here until the world knows that if you enter Britain illegally, you will be detained and swiftly removed—back to your home country if it is safe, or to a safe third country, such as Rwanda.

That is precisely what this Bill will do. That is how we will stop the boats. This Bill enables detention of illegal arrivals, without bail or judicial review within the first 28 days of detention, until they can be removed. It puts a duty on the Home Secretary to remove illegal entrants and will radically narrow the number of challenges and appeals that can suspend removal. Only those under 18, medically unfit to fly or at real risk of serious and irreversible harm—an exceedingly high bar—in the country we are removing them to will be able to delay their removal. Any other claims will be heard remotely, after removal.

When our Modern Slavery Act passed, the impact assessment envisaged 3,500 referrals a year. Last year, 17,000 referrals took on average 543 days to consider. Modern slavery laws are being abused to block removals. That is why we granted more than 50% of asylum requests from citizens of a safe European country and NATO ally, Albania. That is why this Bill disqualifies illegal entrants from using modern slavery rules to prevent removal.

I will not address the Bill’s full legal complexities today. Some of the nation’s finest legal minds have been and continue to be involved in its development. But I must say this: the rule 39 process that enabled the Strasbourg court to block, at the last minute, flights to Rwanda, after our courts had refused injunctions, was deeply flawed. Our ability to control our borders cannot be held back by an opaque process conducted late at night, with no chance to make our case or even appeal decisions. That is why we have initiated discussions in Strasbourg to ensure that its blocking orders meet a basic natural justice standard, one that prevents abuse of rule 39 to thwart removal. That is why the Bill will set out the conditions for the UK’s future compliance with such orders. Other countries share our dilemma and will understand the justice of our position.

Our approach is robust and novel, which is why we cannot make a definitive statement of compatibility under Section 19(1)(a) of the Human Rights Act 1998. Of course, the UK will always seek to uphold international law, and I am confident that this Bill is compatible with international law. When we have stopped the boats, the Bill will introduce an annual cap, to be determined by Parliament, on the number of refugees the UK will resettle via safe and legal routes. This will ensure an orderly system, considering local authority capacity for housing, public services and support.

The British people are famously a fair and patient people. But their sense of fair play has been tested beyond its limits as they have seen the country taken for a ride. Their patience has run out. The law-abiding patriotic majority have said, ‘Enough is enough.’ This cannot and will not continue. Their Government—this Government—must act decisively, must act with determination, must act with compassion, and must act with proportion. Make no mistake: this Conservative Government will act now to stop the boats. I commend this Statement to the House.”

My Lords, that concludes the Statement.

--- Later in debate ---

[Baroness Ludford (LD)]

My Lords, I thank the Minister for repeating the Statement. I came across an article that said:

“The longer the queue, the worse the administrative confusion, the greater the incentive is for racketeers to target their efforts on Britain. There is a direct link between Government incompetence in managing asylum cases and the surge in applications to stay here.”


This was written in 2000 by William Hague, then the leader of the Conservative Party and now of course the noble Lord, Lord Hague of Richmond. He was criticising the then Labour Government, but, in the ministerial letter we received, referring to plans to

“clear the legacy initial decision asylum backlog by the end of 2023”,

there was a complete failure to acknowledge that this legacy was created by a Tory-run Home Office, which has never got a grip over the last 13 years. Nearly 100,000 people have been waiting for a decision on their asylum claim for over six months—that is four times the number in 2019. We need a minimum service level in the Home Office.

We all want to see an end to dangerous channel crossings, but the Bill and the hullabaloo surrounding it are just more of the same gimmicky gesture politics, not the practical and sustainable solution that is actually needed. The Bill is not only unworkable but illegal and immoral. It treats people as criminals simply for seeking refuge. In the article I quoted from, the noble Lord, Lord Hague, said:

“We believe Britain has a moral as well as a legal duty to welcome here people who are fleeing for their lives.”


That “we” was the Conservative Party 23 years ago. No wonder that even some Tory MPs are now upset at the xenophobic and dehumanising rhetoric and intentions to breach the refugee convention and the European Convention on Human Rights.

In her enthusiasm to make the demonisation of refugees an election selling point, the Home Secretary appears to have broken the Ministerial Code: a fundraising email sent in her name to Conservative Party supporters disgracefully tarred civil servants as part of an “activist blob” that has “blocked” the Government from trying to stop the small boat crossings.

Why is the Bill needed, when the ink is barely dry on the Nationality and Borders Act 2022, which was supposed to be the magic solution that would stop the boats? This plan will punish the victims of persecution and human trafficking, but it will do nothing to stop the evil criminal gangs who profit from these small boat crossings. Not only are the majority of men, women and children who cross the channel doing so because they are desperate to escape war, conflict and persecution; most of them are in fact granted the protection they need. Four out of 10 people arriving on boats last year were from just five countries, with an asylum grant rate of over 80%—the Home Office recently decided to fast-track applications from a similar list of countries. How does the plan to deem inadmissible any claims from people who arrive on small boats from countries such as Afghanistan or Syria accord with these facts?

The only way to stop these dangerous crossings is to create safe and legal routes. The Government talk about such routes, but where and what are they? Will the Government commit to granting humanitarian visas to people needing to flee? We are told that the Bill will introduce an annual cap on the number of refugees whom the UK will accept, but how would that work? If the next person arriving is escaping the terrible cruelty of the Taliban or the appalling regime in Iran, will they just be refused? The number of family reunion visas issued in the year to September last year was more than a third down on 2019, so safe routes are in fact being constricted. Will the Minister assure me that the Government will commit to supporting my Refugees (Family Reunion) Bill, which recently passed this House, when it progresses through the other place?

Instead of locking up asylum seekers or forcing them to stay in hotels, will the Government commit to ending their absurd ban on asylum seekers working after they have been waiting months for their claims to be processed? If so, they could pay their way.

We are expected to proceed with a Bill of which the Government themselves say there is more than a 50% chance that it is incompatible with the ECHR. Quite how they can say they

“remain confident that this Bill is compatible with international law”,

when simultaneously believing that it is only 50% likely to be, is a mystery. How can a law actually designed to circumvent human rights possibly be fit for purpose? Lastly, speaking of human rights, can I ask for a list of countries to which people would not be returned?

[Lord Murray of Blidworth (Con)]

My Lords, it is clear that the need for reform is obvious and urgent. The problem in the channel has grown over the last two years. Since 2018, 85,000 illegally entered the UK by small boat—45,000 of them in 2022 alone. Many of them came from safe countries, such as Albania, and all travelled through multiple safe countries, in which they could and should have claimed asylum. The vast majority, 74% in 2021, were adult males under 40, rich enough to pay criminal gangs thousands of pounds for passage.

Noble Lords will not have noticed or been able to discern from the speeches of the noble Lord, Lord Coaker, and the noble Baroness, Lady Ludford, any policy from either the Labour Party or the Liberal party to address the crossing of the channel. The noble Lord, Lord Coaker, suggested that the delays in the asylum process were causing the mass migration—this is simply not the case. As the UNHCR says, there are 100 million refugees in the world at the moment. This requires an urgent and sustainable solution.

The noble Lord, Lord Coaker, asked me whether the Nationality and Borders Act was not a complete answer. I can reassure him that it was never said that that Act would be a silver bullet. This Bill builds on that Act, which laid the foundations of our approach but, because the situation has got worse, we now need to go further. The Nationality and Borders Act was about changing how we processed asylum claims in the current system to streamline it and reduce late and spurious claims. It made progress, and it is right that we did that, but this is different. We are now going to move these cases out of the system entirely, so they are heard elsewhere in a safe country. Illegal entry will no longer be a route to making a claim to settle in the UK—it is only by making it clear that if you come here illegally you will not have the ability to stay here that we will stop the boats. That is a measure of compassion, because it will stop people embarking on dangerous journeys across the channel.

Furthermore, as the noble Baroness, Lady Ludford, has suggested that creating safe and legal routes is the answer, I can reply to her that it is no answer. If Parliament set a cap of, say, 30,000 that it was going to take by means of the safe and legal routes that already exist, all that would happen is that the demand would remain from those who do not fall within the cap, and the criminal gangs would still be there to feed that demand.

The noble Lord, Lord Coaker, and his right honourable friends in the other place, suggested that the answer was to put more money into the NCA to break the criminal gangs. We have already done that: the NCA funding has been doubled, but that cannot on its own be any answer. The only answer is one to be made in legislation.

For all those reasons, I do not accept the criticisms advanced by noble Lords.

[Lord Kerr of Kinlochard (CB)]

Last year, 50% of those who crossed the channel came from only five countries—Afghanistan, Eritrea, Syria, Sudan and Iran. If I were a young woman in Iran being hunted by the authorities for demonstrating and had relatives in this country, how could I come here? What safe and legal route is open to me? I believe that there is none. If we want to put the smugglers out of business, as of course we all do, the way to do it, contrary to what the Minister has just said, is to open safe and legal routes. It is absurd to suggest that a flow of 100 million would come in; that is just wild and ridiculous talk.

Has the Minister considered the likely cost of this policy? It seems to have three defects: first, it wrecks our reputation; secondly, it will not work because it will not put the smugglers out of business; and, thirdly, it could have considerable economic costs. Has the Minister considered Article 692 of the trade and co-operation agreement with the EU? If the EU believes that we have broken the European Convention on Human Rights—and the Home Secretary says in the Bill, as the noble Lord, Lord Coaker, pointed out, that she cannot confirm that we have not—and if it turns out that we have, as I believe we have, the Commission has the right to denounce the trade and co-operation agreement. I do not know how much of that it would denounce, but it has been in the press this afternoon that a commissioner contacted the Home Office today. Could the Minister tell us what assessment he has made of the form of action that the Commission would ask the European Union to take against us, and what economic cost that would have?

[Lord Murray of Blidworth (Con)]

I thank the noble Lord for his questions. First, I can reconfirm that safe and legal routes exist. As I have repeatedly told the House—

[Lord Liddle (Lab)]

From Iran?

[Lord Murray of Blidworth (Con)]

Perhaps the noble Lord could listen for a moment. As I told the House, the UK resettlement scheme is one that permits the Government to accept refugees who have been approved by the United Nations High Commissioner for Refugees and are taken directly from conflict zones. This scheme grew out of the Syria and Jordan schemes, and it is a principled and fair way in which to resettle those in need of protection. It has the advantage, as noble Lords will immediately notice, of providing protection to those who need it, not based on their ability to cross Europe and pay a people smuggler to get them across the channel on the basis that they are in sufficiently good health to survive the journey. The present safe and legal routes that exist are much fairer and more appropriate.

In the second part of the noble Lord’s question, he gave a list of countries from which people crossed the channel, but he omitted, of course, Albania, a safe third country which is a NATO member and EU accession country. Given the vast numbers who come by that route from safe third countries, I simply do not accept the premise of his question.

As to his suggestion that in some way the trade and co-operation agreement would be renounced as a result of this Bill being passed, I do not accept that contention for one moment. The Government are of the view that the measures in this Bill are compatible with our international obligations—and time will tell.

[Lord Robathan (Con)]

My noble friend the Minister is an experienced lawyer, and we have heard a lot about how this may or may not be in contravention of international law. I am not an experienced lawyer, but perhaps he could help me out. A lot of the critics are saying that we should let all these people in and then determine things and possibly reward them with British citizenship. Does he think that, if we let people into this country who break the law to come here and then rewarded them with British citizenship, it would undermine everybody’s respect for the rule of law in this country?

[Lord Murray of Blidworth (Con)]

I entirely agree with my noble friend. The reality appears to be, from the policy vacuum on the Labour Benches, that the Labour Party is in favour of open borders, which appears to be entirely out of step with the views of the British people.

[Lord Blunkett (Lab)]

My Lords, the notion that the Labour Party is in favour of open borders is a complete calumny. It is a disgrace that we should argue such an important issue in this way. Article 692 has been referred to, and it is clear from the evidence that the Justice and Home Affairs Committee of this House received earlier this week that it is likely that Part 3 of the TCA would be disestablished. The consequences of that would be absolutely catastrophic.

Let me put this to the Minister: when his boss, the Home Secretary, talked about the 100 million people displaced, and in the next sentence said, “These people are coming here”—that is what she said—did she not believe that she was throwing a match into an oil tanker? Did she not understand the Donald Trump playbook of creating a crisis then believing that other people can be blamed, such as the Civil Service, the opposition parties and this House?

I suggest that it is worth at least thinking about the idea that, while we might take this Bill through Committee, we do not vote it down, because that is exactly what this Conservative Government want. Let us have a sensible debate about sensible policies agreed with the French, starting next Friday, to do what we did 20 years ago and stop the flow.

[Lord Murray of Blidworth (Con)]

As the noble Lord will recall from his time in this department, the policy of stopping asylum is not straightforward, and that of stopping people from entering illegally and claiming asylum is not straightforward. The Labour Party failed in its time in office to answer this question, and the problem has only got worse, particularly over the past two years. It is with this legislation that we are addressing the issue that has arisen. In the absence of a policy from the Labour Party, we can do no other than to conclude that it is in favour of open borders.

As to the noble Lord’s second point in relation to international co-operation, it has been vital, alongside the creation of this new legislation, to liaise internationally both with the French and the Albanians. As the noble Lord is aware, the Prime Minister is meeting President Macron on Friday to discuss these issues.

[Lord Deben (Con)]

Does my noble friend accept that this is too serious a matter to try to turn it into party politics? Does he further accept that international law is crucially important for Britain and for the establishment of a whole range of other things? The Conservative Party is intended to be the party of law and order. I must say to him that many of us accept the seriousness of the numbers of people concerned. If you are concerned with climate change—as I am—it will increase and be worse, but we cannot do this by breaking international law.

I will go along all the way with my noble friend on the tough measures that have to be taken, but he has to accept that to propose something that is against international law will undermine all the other things that we have to do throughout the world. It does not help to say things that are, frankly, somewhat distant from the truth. I happen to think that the Labour Party has got it wrong, but it does not mean that, because it has got it wrong, it does not have a policy. On this occasion, unusually, it does.

[Lord Murray of Blidworth (Con)]

I can reassure my noble friend that, as I have already said, the Government do not believe that they are acting contrary to international law.

[Lord Alton of Liverpool (CB)]

My Lords, if it was so that the Government are not acting contrary to international law, as the Minister has just said, then the compatibility statement would be put on the face of the Bill.

[Lord Murray of Blidworth (Con)]

My Lords—I am sorry, is the noble Lord finished?

[Lord Alton of Liverpool (CB)]

No, I have not finished; I have a number of points that I would like to make to the Minister. It seems to me that, if we are saying that this is ultimately a matter that must be decided by the courts, that is no way to treat Parliament. Indeed, the process being suggested, that we should proceed with a Bill that is in contravention of the Human Rights Act, seems an insult to both Houses of Parliament and I am surprised that the Government would even contemplate that.

I have one or two question to follow what the noble Lord, Lord Deben, said about international law. The United Nations High Commissioner for Refugees has said, in terms:

“This would be a clear breach of the Refugee Convention”


and would undermine

“the very purpose for which the Refugee Convention was established.”

Is the Government’s position that the refugee convention should no longer apply in the United Kingdom or that it already does not apply in the United Kingdom?

Secondly, there are arrangements suggested in Clause 3 of the Bill on the removal of unaccompanied children. How could such a removal ever be compatible with our obligations under the United Nations Convention on the Rights of the Child? Clause 2(2)(a) will prevent anyone claiming asylum who has travelled on a forged passport—in fact, I think the Minister referred to this a moment ago. However, we know of course that many people fleeing persecution will have sought to deceive the authorities in the country from which they are fleeing—that is entirely to be expected in circumstances where they are being persecuted by that Government. Given that is the case, is not the UNHCR right to describe this Bill as destroying the right to claim asylum in the United Kingdom?

[Lord Murray of Blidworth (Con)]

I will deal with that question in parts. First, as to the declaration on the front of the Bill—to which I draw the noble Lord’s attention—he will note that the Secretary of State, Suella Braverman, made a statement under Section 19(1)(b) that:

“I am unable to make a statement that, in my view, the provisions of the Illegal Migration Bill are compatible with the Convention rights, but the Government nevertheless wishes the House to proceed with the Bill.”


As the noble Lord will be aware, when the Labour Government introduced the Human Rights Act, Section 19 provided for a ministerial statement as to compatibility. By way of a Statement, the then Minister in charge of the Bill, Jack Straw, provided that this test should be one of a 50% threshold. The effect is that a Section 19(1)(a) statement is that you are satisfied that the measures are absolutely compliant, and a Section 19(1)(b) statement is that you are less than absolutely sure. Therefore, by placing a declaration of this kind on the front of the Bill, it is not a statement that the Government believe that the measures in it are not compatible; it is clearly the case that there is a strong—in my submission—legal basis for contending that these measures are compatible. However, applying the principles enunciated by Jack Straw following the passage of the Human Rights Act, the Home Secretary has quite properly appended her name to the statement on the front of this Bill. That, I hope, deals with the noble Lord’s first point.

I turn to the noble Lord’s second point, in relation to the UNHCR’s comments yesterday evening—I think the UK representative of the UNHCR made some comments. Plainly, His Majesty’s Government disagree with that analysis. I draw noble Lords’ attention to the passage in the judgment given by the High Court in the Rwanda case, in which submissions were made by counsel on behalf of the UNHRC in relation to its views on the scheme. The court did not say that those submissions were correct. It is clear that this is no infallible statement as to compatibility with international law.

[Baroness Williams of Trafford (Con)]

My Lords, before noble Lords continue, there are a lot of people wanting to ask questions, so I implore noble Lords to ask short questions that will elicit short answers from the Minister. Let us continue with the noble Lord, Lord Campbell.

[Lord Campbell of Pittenweem (LD)]

My Lords, the Minister mentioned the rule of law. Why is it, then, that every time this Government find themselves in difficulty, they seek refuge in illegality? They did so in Part 5 of the markets Bill, they did so in relation to the Northern Ireland protocol, and now we have the admission, to which the Minister has just referred, that the provisions in this Bill may be illegal. Of course, we have to take that together with the opinion expressed by the United Nations High Commissioner for Refugees. The unwillingness to give certification in the usual form is, in a sense, corroborated by what the UNHCR has said.

Even the title of this Bill is ambiguous. It is called the “Illegal Migration Bill”, but we are not clear yet —it is at least becoming clear to me—that it is not the migration that is illegal but the Bill itself. I finish by repeating a point already made: growing up in politics in this country, I have been told many times that the Conservative Party is the party of law and order. I have stopped believing that this evening.

[Lord Murray of Blidworth (Con)]

I thank the noble Lord for his remarks. The Conservative Party very much remains the party of law and order. It is this Parliament that decides the laws for this country, and it is this Parliament that must decide who can enter and when they can enter. It is our view that these measures are compatible with international law. That does not—whatever the noble Lord might suggest—render the measures in this Bill in any way illegal.

[The Lord Bishop of Durham]

My Lords, I return to the Statement, rather than the Bill, which we will spend hours debating in due course. There was a lot in this Statement that worried me, but what worried me even more was that there was no reference whatever to children, unaccompanied children and their protection in this whole process. Can the Minister comment on why nothing was said about that in the Statement?

[Lord Murray of Blidworth (Con)]

The Statement was intended to—and did—accurately set out the contents of the Bill. Indeed, in the exchanges that followed, which the right reverend Prelate will find in Hansard, it was clear that there was discussion of the status of children. I can confirm that the position is this: the removal of any under-18s will be delayed until adulthood except in certain circumstances. As the right reverend Prelate is aware, one issue that has arisen in relation to the exception for minors is of people claiming to be minors when they are not. This is of course an attempt to evade immigration control and can have serious safety ramifications if such a person is placed with children.

[Lord Cormack (Con)]

My Lords, I express the hope that when the Prime Minister is discussing things with President Macron, they have two aims: first, to establish safe, simple, clean accommodation in France, jointly paid for by this country and France; and, secondly, to make a real attempt to arrest and punish those who pilot the boats. There is a big difference between them and those who sacrifice both their lives and their life savings to get across.

[Lord Murray of Blidworth (Con)]

I thank the noble Lord for that question. It is not the case, I am afraid, that the people-smuggling gangs are responsible for piloting the vessels: quite frequently they will delegate the duty of piloting the vessels to other passengers; it is not uniquely the case. This means that it is in fact much harder to penalise the masterminds behind these organisations. Very great efforts are made, but the reality is that there is a massive demand to cross the channel. Lots of people want to come to our country, and when there is that untapped demand, unfortunately, the likelihood is that if one criminal gang is closed down, another will crop up, unless you attack the seat of the problem, which is the demand for illegal migration.

[Baroness Williams of Trafford (Con)]

My Lords, my noble friend Lord Murray is going to hate me, but I have just had agreement through the usual channels that we will go an extra 10 minutes, given the demand for questions. So we will hear from the noble Baroness, Lady Bennett, from my noble friend Lord Balfe and from the Cross Benches.

[Baroness Bennett of Manor Castle (GP)]

I am sure the Minister will wish to correct an erroneous statement that he made in responding to the Front-Bench questions. He said there are 100 million refugees in the world. That is not what the Statement says. The figure from which the Statement draws comes, I believe, from the UNHCR: 100 million displaced people in the world, most of whom are in the countries of origin. I am sure the Minister will want to correct that. I am going to pick up on the question of children. Have the Minister or the Government considered what life would be like for a 16 year-old, a 15 year-old or a 17 year-old being held—warehoused—in this country and then, the day they turn 18, being thrown out, even though we know they are a refugee?

[Lord Murray of Blidworth (Con)]

I thank the noble Baroness and I entirely accept her correction. She is quite right about the figure of 100 million: it is displaced persons. On her second point, I am afraid I do not accept that it would be appropriate to exclude everyone under 18 from the operation of the scheme, and it is obvious why that should be: sadly, such an exception would generate very great abuse.

[Lord Balfe (Con)]

My Lords, this is certainly not an ideal Bill, but the problem it seeks to address has been around for a long time. In my view, it lost us the referendum, which was a big tragedy.

[Lord Balfe (Con)]

It won the noble Lord the referendum, but it lost me the referendum. The key point surely is that we live in a democracy. The people are demanding action in this area loud and clear, and it is our duty as a Government to deliver what the public want. The public want the boats stopped, so I hope that we can have a discussion on the basis of making the Bill work, not wrecking it.

[Lord Murray of Blidworth (Con)]

I entirely agree with my noble friend.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I really hope we do not play party politics with the Bill. Earlier, it was said that the Home Secretary had created a crisis by the use of rhetoric and I just point out that, no, she did not: there is a crisis and that is that we are not controlling the borders. So we have to be very careful—on all sides, by the way. Will the Minister reflect, based on the Statement, that the very concept of modern slavery, for example, but even asylum and refugee status, are in danger of being undermined by the confusion caused by claiming that people from safe countries are fleeing war and persecution? People are becoming cynical when they hear the word “asylum”. There is a gaslighting of the British public by people who challenge them and tell them they are inhumane and not compassionate. Will he reflect on the toxicity that has been created by that, with the trending of “Nazi Germany”, “1930s” and all the rest of it? That is an insult to the British public, is it not?

[Lord Murray of Blidworth (Con)]

Yes. Taking the noble Baroness’s points in order, I very much heed her words: it is very important that discussion of these issues happens in a calm and measured fashion. On her second point in relation to the cynicism that is born of the abuse of the generosity of the British people towards those seeking asylum and humanitarian protection, I could not agree more. Sadly, that has led to a reputation that these measures can be abused by those who are, in reality, wanting to come to Britain for reasons of economic migration rather than for genuine protection. Abusing those measures has led to a degree of cynicism among the public. Finally, on her final point as to whether there is toxicity, there is. The best way to deal with that is to stop the boats and have a system of asylum protection that brings people directly from neighbouring countries to those from which these people come and does not allow people to jump the queue by travelling across Europe and paying the people smugglers.

[Baroness Butler-Sloss (CB)]

The Modern Slavery Act 2015 was a landmark Act, followed by many parts of the world. Do the Government appreciate the impact across the world, in countries that have followed us, of the extent to which we are reneging on that Act under Clauses 21 to 25?

[Lord Murray of Blidworth (Con)]

I entirely agree that the Modern Slavery Act was a landmark provision, but sadly that too has been the subject of very extensive abuse. As we set out in the Statement, it is clear that people are being advised to claim that they are victims of modern slavery in order to avail of the respite and the long period for conclusive determination of modern slavery claims, which was passed by this House and the other place as a measure of compassion for modern slaves. The measures in this Bill do not undermine our principle of acting to stop this evil practice of modern slavery.

[Lord Liddle (Lab)]

My Lords—

--- Later in debate ---

[Lord Liddle (Lab)]

My Lords, does the Minister accept that we cannot solve this problem by unilateral domestic action alone? We have to have co-operation with European countries that are facing similar problems of asylum and refugees. Does he also accept that this co-operation is going to be very difficult to deliver if we are seen to be unilaterally going against the European Convention on Human Rights? This is fundamental, because it will not only stop co-operation in this area but threaten co-operation in areas such as trade. It is a foundation of the Good Friday agreement and is vital to Britain’s standing in the world.

[Lord Murray of Blidworth (Con)]

I agree that international co-operation is a vital part of the jigsaw; that is why we reached fresh agreements in December with the Governments of Albania and of France and why the Prime Minister is meeting President Macron on Friday. To that extent, I agree with the noble Lord. However, I do not agree that the United Kingdom cannot act unilaterally, because we need to stop people taking these risky journeys across the channel—one of the busiest and most dangerous sea lanes in the world. That requires special legislation to be passed by this Parliament, and this Bill satisfies that.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, does my noble friend recall that, last year, we granted right of admission to 1.1 million people and gave right to remain to 504,000 people? Is it not unsurprising, given the scale of those numbers, that the British people are asking us to bear down on those who seek to jump the queue and arrive illegally?

[Lord Murray of Blidworth (Con)]

I could not have put it better myself; I entirely agree with my noble friend.

[Baroness Hoey (Non-Afl)]

My Lords, does the Minister agree with the noble Lord, Lord Balfe, who said what the vast majority of the British people will be thinking—that at last the Government are doing something to make sure that we can control our borders? Will stopping the use of hotels require legislation—if so, that could take some time—or are the Government committed to stopping it as soon as possible?

[Lord Murray of Blidworth (Con)]

The Home Office very much wishes to stop the use of hotels. I hope there may be some announcements on that in the near future.

[Lord Scriven (LD)]

Does the Minister think it is humane and shows the sense of Great British compassion that, under the provisions of this Bill, an unaccompanied child fleeing war and arriving on these shores at the age of seven will, 11 years later at the age of 18, be deported to another country and have no automatic right of return to the country in which he or she has been for 11 years and made his or her life?

[Lord Murray of Blidworth (Con)]

This is a scheme to prevent illegal immigration. That person would need to have paid a people smuggler to bring them across the channel. For the scheme to be coherent, age alone cannot automatically exclude membership from the cohort for removal.

National Security Bill

Lord Murray of Blidworth Excerpts

Report stage
Wednesday 1st March 2023 Lords Chamber

I think that the position of the Labour Party was perhaps best summed up by the noble Lord, Lord Evans, when he spoke just now. It is clearly not for any individual to be in a position to decide on the wider security aspects of any potential activity; that could have extremely damaging implications, and to claim a public interest defence may be inappropriate. There need to be appropriate safeguards, and there needs to be a more targeted approach. We believe that our Amendment 18A, establishing a mechanism for addressing the concerns expressed by the House, would be the best way forward.

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

My Lords, this group of amendments covers the introduction of a public interest defence—a PID. This topic has been debated at length throughout the passage of the Bill. As the House will hear, the Government agree with the criticisms of Amendment 79, just elucidated so clearly by the noble Lord, Lord Ponsonby.

I thank all noble Lords for their remarks during this debate, especially the degree of involvement we have had in the development of the Bill generally, as noted by the noble Lord, Lord Purvis, on the last group. However, it is right to say that the amendment does not address the issues that arise, and the Government therefore cannot accept it. As I set out during the debate in Committee, the offences in the Bill target harmful activity from foreign states, not whistleblowing or public interest journalism. Our view, therefore, is that a public interest defence is not only unnecessary but risks significantly undermining the utility of the provisions in the Bill.

The Government’s principal position is that a public interest defence in relation to espionage is not appropriate. While we note the changes made to the amendment, this does not change the Government’s view on the matter. Notably, the risk with a public interest defence is that, at the point that the defence comes into play, the harm will already have been done. Seeking to rebut any form of public interest defence in criminal proceedings risks only compounding the damage. This, of course, is a point already eloquently made by the noble Lord, Lord Evans.

Furthermore, the proposed public interest defence for onward disclosures of information obtained via the espionage offences in the Bill, as has been proposed here, is inherently damaging to the national interest. I also entirely agree in this regard with the noble Lord, Lord Evans. To permit onward disclosures of this information under any circumstances would significantly undermine the weight we are affording to these offences.

The questions posed about the Law Commission’s recommendations relate to the Official Secrets Act 1989 which is not, as we discussed in Committee, the topic of reform in this legislation. We have heard strong views and concerns raised about the 1989 Act in our public consultation, and we need to take time to give proper consideration to those concerns. Therefore, we are not reforming the Official Secrets Act 1989 in this Bill.

It is clear to us that reform is complex and engages a wide range of interests. It is only right that proper due consideration should be given to the concerns that stakeholders have raised in the consultation. Furthermore, we need to prioritise delivery of our wider package of measures to tackle state threats and ensure that our law enforcement and intelligence partners have the tools that they need to keep us safe from those seeking to do us harm. We do not want the complexity of Official Secrets Act 1989 reform to distract from this. To that end, I agree with what the noble Lords, Lord West and Lord Evans, said.

I turn to the points raised in the previous group by the noble Lord, Lord Purvis, in relation to whistleblowers. We say that there are sufficient safeguards for whistle- blowers in the espionage offences. For the offence of obtaining or disclosing protected information, that activity has to be for a purpose prejudicial to the safety or interests of the United Kingdom. If an individual uses appropriate whistleblowing routes, their conduct would not meet this requirement—a point powerfully made by the noble Baroness, Lady Manningham-Buller, when these amendments were being considered in Committee.

For the offence of obtaining or disclosing trade secrets, the activity has to be unauthorised. Using appropriate whistleblowing routes would not meet the requirement for unauthorised activity. Moreover, there is a damage element to the offence in Clause 2(2)(b). For the offence of assisting a foreign intelligence service, the person has to know or reasonably ought to know that their conduct may assist a foreign intelligence service in carrying out UK activities or intend their conduct to do so. This is very different from reporting something to an appropriate regulatory body as a whistleblower.

It is not the case that there is a reliance upon juries in the place of a whistleblowing defence, as the noble Lord, Lord Marks, appeared to contend. The role of a jury, when advised by the judge, is to determine whether the defendant is guilty or not guilty based on the evidence presented during the trial. This takes up many of the points raised by my noble and learned friend Lord Garnier in his speech a moment ago. This is an integral tenet of our justice system and applies in 1989 Act cases. This does not mean that the Official Secrets Act 1989 legislation is deficient. There is, of course, no statutory public interest defence in the 1989 Act, and therefore it is already clear in the law that juries should not acquit a defendant on the basis that they consider that the public interest in making a disclosure outweighs the damage caused by the disclosure. The Government are clear that we do not consider the introduction of a public interest defence in the Official Secrets Act 1989 to be appropriate. It is not the safest or most appropriate way for an individual to raise a concern of wrongdoing and have it rectified. It is already possible to make disclosures of information that are not damaging without breaching the 1989 Act.

However, the Government have heard and understand the concerns that the Bill could inadvertently capture genuine journalistic activity, as we discussed in the previous group. Even if the Government were to accept that these offences risk criminalising such genuine activity, a public interest defence would not be an appropriate way to address this. This sentiment was echoed by the noble Lord, Lord Carlile, during the debate on the public interest defence in Committee, for which I am grateful. Indeed, a public interest defence would create loopholes that hostile actors would use to commit espionage against the United Kingdom.

As the noble Lord, Lord Evans, was quite correct in saying, the difficulty for whistleblowers is that they have an imperfect picture of the available information. It is not for the whistleblower to determine the extent of potential damage caused by the disclosure in the public interest.

The question of damage was raised in the debate. It was suggested that a damage requirement should be added to these offences. The Government’s position is that this would significantly undermine their utility. The type of activity described in the offences is inherently damaging. For example, in Clause 1, if an individual discloses protected information to a foreign power or otherwise on their behalf or for their benefit with a purpose

“prejudicial to the safety or interests of the United Kingdom”,

this is inherently damaging. Including a damage requirement would mean that we may need to prove the damage caused by disclosure in court. This, of course, would risk compounding that damage further. If we could not prove that damage in court, for example, because the risk of compounding the damage was too great, a person could freely provide protected information to a foreign power with the intention to prejudice the United Kingdom.

I already noted the potential risks and loopholes that could be created and exploited. This is not a defence in relation to Clause 3(2). The Government have extensively considered the arguments for and against a public interest defence but have concluded that the risk this could cause to the United Kingdom and the fact that this would undermine the purposes of the Bill mean that such a defence is not appropriate. Therefore, there is no need for an assessment and formal consultation on the inclusion of such a defence as tabled by the noble Lord, Lord Coaker, at Amendment 18A and the Government do not accept that amendment. As the noble Lord, Lord Purvis, noted, there have been significant changes to the oversight provisions in the Bill. It is correct that this amendment should be viewed in light of those changes in position by the Government.

Instead, we say that the focus should be on ensuring that the drafting of the requirements and offences in the Bill is sufficiently tightly drawn to ensure that genuine activity, including by journalists, is not in scope. This is why the Government have responded by tabling amendments to the provisions in Part 1, as stated a moment ago by my noble friend Lord Sharpe. This includes clarifying the phrase “ought reasonably to know” and the amendments to Clause 3. For these reasons, the Government cannot accept the tabled amendments.

I move now to Amendment 79A, which proposes the establishment of a new office for the national security whistleblower. I am grateful for the indication from the noble Lord, Lord Ponsonby, that he will not be pushing the matter to a vote but let me outline the government position in relation to that. This proposal differs from that debated in Committee in this House. The Government’s view remains that such a role is not required in relation to these offences. As I set out in Committee,

“The Government are committed to ensuring that our whistle- blowing framework is robust, and I confirm that the business department intends to carry out the promised review of the existing framework, and that further details will be set out in due course in relation to that.”—[Official Report, 18/1/23; col. 1913.]


We have just debated how the Bill targets hostile activities for and on behalf of foreign powers. I have been explicit that this legislation is not targeting the genuine work of journalists. By extension, it is therefore clear that the Bill does not target genuine whistleblowing. Consequently, a whistleblowing office in relation to this Bill misunderstands the aims of the legislation. Again, I refer the House to the Committee stage, when I and the noble Baroness, Lady Manningham-Buller, set out the options available where an individual has a genuine need to raise a concern and I shall not repeat those here. The Government are committed to ensuring that these channels are safe, effective and accessible. For these reasons, we cannot accept the tabled amendments. I am grateful to all noble Lords for their contributions.

--- Later in debate ---

[Lord Wallace of Saltaire (LD)]

My Lords, my name is also on these amendments, and I have also spoken with the High Commission; my noble friend Lord Purvis has spoken to both the Minister on the Front Bench and to the noble Lord, Lord Ahmad, in the Foreign Office. If I have an interest to declare, it is that 25 years ago I worked on the Cyprus conflict and discovered a fair amount about the complexities of Cypriot politics—and they are no less complex today than they were then.

I will make a number of domestic comparisons. This is in my experience very much a Home Office Bill; it does not appear to take into account diplomatic niceties or the sensitivities of other states. We have some bitter experience in this country of sensitivities about sovereignty and the attempts by other states to exert legislative authority over this country, in relation to the EU. We are still being told that the European Court of Justice has imperial ambitions, and that we had to regain our sovereignty because it was trying to legislate for us, about our country.

Beyond that, of course, we have US bases in this country. I am very familiar with RAF Menwith Hill, which is close to where I live in Yorkshire, and I know a fair amount about RAF Mildenhall. The Minister will remember that when it appeared that the wife of a US serviceman at RAF Mildenhall was trying to evade British law by claiming diplomatic immunity and then going to the United States, there was a campaign of outrage in the Daily Mail, the Daily Telegraph and others over this incursion into British sovereignty.

I remind the Minister that the agreements between the UK and the United States over US bases in this country are extremely discreet: the details have not been published; they are renewed every 10 years without parliamentary debate; and the two countries negotiate quietly about the conditions under which they operate. They do not involve Congress legislating with reference to these extraterritorial bases in the United Kingdom. Indeed, if Congress were to legislate with reference to RAF Mildenhall, RAF Menwith Hill and other bases, I am sure that the Daily Mail, the Daily Telegraph and others would be outraged on our behalf at this apparent imperial incursion into British sovereignty.

I am conscious that Cypriot domestic opinion has as many elements, from the right to the left, as we have in this country. Of course, it would be a populist, nationalistic, mischievous campaign to provoke a public outrage in Cyprus about this apparent incursion into Cypriot sovereignty, but we in Britain now have some hard-won and bitter experience of how easy it is for populist and mischievous politicians to cause nationalistic outrage.

These references are not necessary. Clause 97 is enough. I hope that the Minister will take advice and consider that the Government should withdraw the references to the sovereign base areas in these other clauses. I repeat: Clause 97 is enough. The good will of the Government of Cyprus, and of the public in Cyprus, is important to this country, and we should not offend them.

[Lord Murray of Blidworth (Con)]

My Lords, this group covers a variety of related topics. The House has heard only about the amendments pertaining to the sovereign base areas, but I will address the other amendments advanced by the Government. The group covers amendments to the meaning of “government department” and changes to Schedule 2 to the Bill, and it deals with the amendments on the sovereign base areas, which I will come to in a second.

I start with a query raised by the noble Lord, Lord Purvis, in Committee. The question at the time was whether the reference to “government department” in the meaning of “Crown interest” in Clause 7 may include the departments of the devolved Administrations. It is the Government’s intention that any reference to “government department” within Part 1 of the Bill, including those falling under “Crown interest”, applies only to government departments of the United Kingdom. This means that we are not seeking to extend the meaning of “government department” to the devolved Administrations. I hope that this goes some way to settling the noble Lord’s concerns.

The Government have also made a number of changes to Schedule 2 to the Bill. In Committee, they made an amendment so that the Bill makes explicit provision that a Schedule 2 production order can be made to a judge without the subject being given notice of the application in advance. Currently, sub-paragraph (d) of condition 5 of the search and seizure powers at paragraphs 9 and 25 of Schedule 2 outlines that this condition may be met if the service of notice of an application for a production order may seriously prejudice an investigation. Without further change, this condition is no longer operationally effective because a warrant for search and seizure would not be granted in instances where the use of a production order more generally, which had been given without notice to a judge, would prejudice an investigation.

This group of amendments therefore closes the gap by bringing condition 5 closer to the equivalent provisions of Schedule 5 to the Terrorism Act 2000, which sets out that the use of a production order would not be appropriate because an investigation may be seriously prejudiced unless a constable can secure immediate access to the material. It is important to stress that it has always been the Government’s position that the use of production orders should be considered in the first instance, resorting to a warrant where such an order is not appropriate to the investigation.

Finally, government Amendment 60 simply makes it clear that Acts of Adjournal made in relation to the production order powers in part 2 of Schedule 2 would be made by the High Court of Justiciary in Scotland. This is already the case within the current drafting, and we seek only to make this clear. Government Amendments 55 and 59 simply add the offences under Schedules 3 and 4—which were added to the Bill in Committee in the Commons—to the list of offences for which the powers of entry, search and seizure in Schedule 2 are not available.

I now turn to the amendments tabled by the noble Lords, Lord Anderson of Ipswich, Lord Carlile of Berriew and Lord Wallace of Saltaire. These amendments seek to remove references to the sovereign base areas from the prohibited places provisions in Clauses 7 and 8 of the Bill. The sovereign base areas are critical for UK defence and include a unique governance structure among the overseas territories given that the administrator, who is also the commander of British Forces Cyprus, has all the executive and legislative authority of the Government of the UK overseas territory.

[Lord Wallace of Saltaire (LD)]

Is the Minister classifying the sovereign base areas as having the same relationship with Britain as overseas territories? I was not aware that the SBAs were formally overseas territories.

[Lord Murray of Blidworth (Con)]

Clearly, the SBAs are a special structure, as set out in the 1960 treaty. As I say, they have a unique governance structure which I have already described. The unique context of the SBAs is precisely why we are including the option to extend the legislation to the SBAs in their entirety.

The thought behind these amendments is that the power in Clause 97 to extend the legislation to the SBAs is sufficient on its own. I understand the thinking behind this. However, these references are quite distinct and achieve different aims. References to the SBAs in Clauses 7 and 8 ensure that harmful activity taking place in respect of prohibited places will be prosecutable under UK law, in UK courts, only where it constitutes an offence under Clause 4. It is important to stress that the offence under Clause 5 cannot be committed in the SBAs, as this clause does not apply outside the United Kingdom. Similarly, the police powers under Clause 6 are conferred only on constables under UK law, and as such cannot be used in the SBAs. This inclusion of the SBAs maintains the status quo, given provisions of the Official Secrets Act 1911, which already cover prohibited places in the SBAs as part of His Majesty’s dominions.

Clause 97, however, creates a power to extend any provision in Part 1 of the National Security Bill, with or without modification, to the SBAs. Should the power be used, the provisions will then form part of SBA law, and this would allow harmful activity to be prosecuted in SBA courts. Removing references in Clauses 7 and 8 to the SBAs would mean that those sites were no longer protected under UK law. That would reduce the protections currently afforded to them under the Official Secrets Act 1911, which will of course be repealed through this Bill. Furthermore, it is critical that these protections are afforded under UK law given that there is no guarantee that an Order in Council would be made so as to extend this part of the Bill to SBA law, leaving those sites potentially without any legislative protection. To reiterate the point I made in Committee—

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

The point, as the noble Lord will appreciate, is that the Bill should endeavour not to leave any potential vacancies which would potentially deprive the SBAs of applicability to this very important statutory provision. I reiterate the point I made in Committee that the Government consider that any references in the Bill to the sovereign base areas will not in any way undermine the provisions of the 1960 treaty, concerning the establishment of the Republic of Cyprus, between the United Kingdom, Greece, Turkey and Cyprus.

To address the point raised by the noble Lord, Lord Wallace, I can confirm that the Foreign, Commonwealth and Development Office and the SBAs were consulted extensively throughout the Bill’s development and agree on its conclusion. I therefore disagree with the noble Lord that relying solely on Clause 97 would cause no harm.

I hope this explains the need to maintain the references in Clauses 7 and 8 and why the Government cannot accept the tabled amendments.

[Lord Anderson of Ipswich (CB)]

The Minister has given us an explanation and I accept that the reference to a constable is to a United Kingdom constable, but Clause 6 gives the constable the power to clear people out of prohibited places. Why is it necessary for United Kingdom law to apply? Why is it not enough that this power should exist under the Order in Council applicable to the SBA? Since only the United Kingdom constable is covered in Clause 6, how can it possibly be necessary to define “prohibited place” for the purposes of Clause 6 as including places outside the United Kingdom? I just do not understand it.

[Lord Murray of Blidworth (Con)]

The Government take the view that it is necessary to have the matter protected in UK law in addition to SBA law, and that, I am afraid, is the answer.

[Lord Purvis of Tweed (LD)]

The Minister was careful when he said that the SBAs and the FCDO were consulted by the Home Office on bringing forward this decision. I would assume that one department would consult another in its own Government with regards to a Bill—I think we can take it as read that the Home Office should have consulted the FCDO. The point that the noble Lord, Lord Carlile, made was that there was no consultation with the Government of Cyprus, which is embedded in the principles of the establishment treaty in 1960. That is why there is a problem with it.

With regards to the further point from the noble Lord, Lord Anderson, if it is only a UK constable, and only within UK domestic law, who enforces it within the SBA area? Who enforces it within the adjacent area to the SBAs, given that the measures are much wider than simply activities here in the UK? Who enforces it there?

[Lord Murray of Blidworth (Con)]

As I hope I have already made clear, it is only Clause 4 that applies. Clause 6 does not apply in this context.

[Lord Carlile of Berriew (CB)]

My Lords, I am afraid I am very puzzled as a result of the Minister’s reply.

First, I think he was suggesting that the Government of Cyprus had been fully consulted. If he was suggesting that, all I can say is that that is the opposite of what I was told, and what the noble Lords, Lord Purvis, Lord Wallace and Lord Anderson, and everybody else who has been spoken to has been told. Secondly, why did the Government change Clause 97? Clause 97 provides for the powers earlier in the Bill to be operated within the SBA following an Order in Council. Are the Government saying that the justice provisions in the SBA are inadequate in some way? I can tell your Lordships that those of us who live around the legal profession know an awful lot of people who go and do cases and even sit as judges in those places, and that is not what they have found on the whole.

I would suggest that the Minister’s reply was insensitive—if I can be forgiven for using that word—and injudicious, and I invite the Government to consider it between now and the coming into law of this Bill. I am not going to press this to a Division tonight; I am not going to ask for the opinion of the House. But I feel a strong sense of dissatisfaction at the explanation, such as it is, that has been given. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Anderson of Ipswich (CB)]

The noble Lord, Lord Purvis, hits on a sore point for independent reviewers past and present. At the instigation of my noble friend Lord Carlile, the Australians copied the job of independent reviewer—I think they call him or her the independent national security legislation monitor, which is even more indigestible. In doing so, they provided in their statute that reports be laid before Parliament within, I think, 15 sitting days of receipt by the Minister, an excellent discipline which I rather wish this amendment had followed.

I do not wish to seem ungracious. The independent review of powers, whose exercise is attended by secrecy, is a token of good faith on the part of government. It has proved its worth since the 1970s in this country in the context of counterterrorism law. I never doubted the good faith of the Government where this Bill is concerned. This amendment will make that good faith evident to others. It will help to dampen down the conspiracy theories that are so prevalent in this area and allow us to keep pace with Australia—and shortly, I hope, Ireland—in providing for independent oversight of almost the full range of national security laws.

However, gratitude has its limits. On first inspection, the amendment tabled by the noble Lord, Lord Coaker, looks even better, so if he divides the House, I shall vote for it.

[Lord Murray of Blidworth (Con)]

My Lords, I thank noble Lords for those contributions. There has been plenty of discussion throughout the passage of this Bill about the need for oversight of the state threats provisions in the Bill. The Government have welcomed this debate and agree on the need for the Bill to go further in this regard. The new provisions proposed by the Government do just that. I am very grateful for the remarks made by the noble Lords, Lord Ponsonby and Lord Purvis, on the Government’s movements in that regard.

I will not spend too long on this group but will set out briefly the provisions and how we expect the government provisions to work in practice. The amendments made by the Government create a single reviewer of state threats legislation to oversee the operation of the measures in Parts 1 and 2 of the Bill. This means that the reviewer will oversee not just the STPIM regime but the criminal offences and the exercise of police powers to ensure that their use is appropriate and proportionate.

The Government are also bringing oversight of the provisions of the state threats port stops power—Schedule 3 to the Counter-Terrorism and Border Security Act 2019—within the remit of the new reviewer, meaning that all dedicated state threats legislation will be considered as part of a single reviewer’s role.

The Government have heard the argument that this role should in practice be carried out by the Independent Reviewer of Terrorism Legislation and can see the potential benefits this could bring. However, the Government are also conscious that the role will be of public interest and will therefore run an open competition for it, rather than appointing someone directly. Given the synergy between the roles, the Government will align the appointment cycle of this post with that of the terrorism reviewer. This will allow the role-holders to work closely together, but also provide the option of having one individual fill both roles, should that be beneficial.

I thank the noble Lord, Lord Coaker, for his proposed amendment on this topic, which would achieve the same effect but also add Parts 4 and 5 to the remit of the reviewer. As mentioned in previous debates on this topic, an explicit commitment to oversight of Part 4 in the Bill is unnecessary, given it is already in the remit of the Independent Reviewer of Terrorism Legislation. I therefore suggest that there is nothing lacking from the present proposal. The provisions in Part 5 are supplementary to the rest of the Bill. The reviewer will be able to look at how Parts 1 and 2 operate in terms of commencement, regulation-making powers and territorial extent without the need explicitly to mention Part 5 in the powers for the reviewer. For those reasons, the Government cannot accept Amendment 80 as tabled by Labour, and hope that colleagues across the House will welcome the government amendments.

[Lord Purvis of Tweed (LD)]

Before the Minister sits down, I wonder if he might be able to address my point—which I remind him is the only point that I made?

[Lord Murray of Blidworth (Con)]

I certainly addressed the point which he generously made praising the Government for our amendments. The point that he raised in relation to the Labour amendment, on the basis that there is no timeframe in the present amendments, is not valid in the Government’s submission, because the Labour amendment itself does not contain any binding requirement on the laying of reports. In our submission, that would remove a level of flexibility. In the area of national security, it is important not to hedge about these kinds of provisions with time requirements. For those reasons, we do not believe that the amendment is necessary. I hope that answers the noble Lord’s question.

[Lord Purvis of Tweed (LD)]

I know that this is Report and we do not have to and fro, but I was making the point that it was an omission in the Government’s amendment. It is utterly open-ended as to whether the Secretary of State will lay the report from the independent reviewer before Parliament. I was seeking clarification from the Minister that that would not be the case.

Eurostar St Pancras: Border Control

Lord Murray of Blidworth Excerpts

Tuesday 28th February 2023 Lords Chamber

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

The United Kingdom operates juxtaposed immigration controls on the Eurostar routes. Therefore, our immigration checks are carried out prior to departure from the stations in France, Belgium and the Netherlands. Passengers disembarking on arrival at St Pancras are not routinely subject to any further checks. French border checks take place outbound at St Pancras as part of the juxtaposed controls agreement.

[Lord Berkeley (Lab)]

I am grateful to the Minister for that Answer—as usual, blaming the French for everything. Eurostar says that, whoever’s fault it is and at whichever end, it is losing 30% of its traffic because the frontier controls are not working properly, four years after Brexit started. Is it not about time that the British and French Governments got their act together to allow people more free movement without being held up for hours and hours at St Pancras, Paris, Lille and Brussels?

[Lord Murray of Blidworth (Con)]

I simply do not recognise the noble Lord’s characterisation. Border Force has deployed in Paris e-gates which, in the last 12 months, have processed more than 1.2 million passengers. The service standard of a wait of no longer than 25 minutes for Border Force officers has been maintained throughout that period. There are no delays which are the fault of Border Force.

[Viscount Hailsham (Con)]

My Lords, in the interests of increasing passenger flow and in the spirit of co-operation, would it not be possible to agree a single, jointly manned border control?

[Lord Murray of Blidworth (Con)]

As my noble friend will recall, the agreement at the time of the implementation of the Channel Tunnel was an international one between the United Kingdom and the French Republic. The agreement was that we should have controls in the way that we do. As I say, they work well, and the arrangements are successful.

[The Earl of Clancarty (CB)]

My Lords, can the Minister say why Eurostar at St Pancras has not been made a designated port for CITES? If a decision has been made, will it be reviewed? This was a particular and reasonable ask from the music sector which would be, or would have been, very helpful. At the moment, UK musicians touring in Europe need all the help they can get.

[Lord Murray of Blidworth (Con)]

St Pancras does not have infrastructure to process CITES goods. There is no red lane or counter, and no lock-up for detained goods. There is no need to overhaul the infrastructure at St Pancras to become a designated Border Force port for these purposes, but, of course, I am open to keeping the matter under review. The noble Earl can write to me, and I am sure we can look at this.

[Viscount Stansgate (Lab)]

The Minister says he does not recognise the difficult situation of going through the Eurostar terminal. As a declaration of interest, I often have occasion to do that, so I see for myself what it is like. The infrastructure both there and at Eurotunnel was built at a time when there was, and on the basis that there would be, completely free movement of citizens between the UK and the EU. Looking ahead, is the Minister aware that the EU, at some stage, wishes to introduce fingerprinting for people who travel from the UK through Dover, Eurostar or Eurotunnel? What plans are the Government making to deal with that, considering the additional time that this is going to take?

[Lord Murray of Blidworth (Con)]

I thank the noble Viscount for raising that important point. We anticipate that future digitisation, both in the EU system and in our own electronic travel authorisation scheme, will accelerate the rate at which people can cross the border. We are implementing infrastructure in Paris which will be able to accelerate the rate at which people can pass through our e-gates.

[Baroness Randerson (LD)]

The Minister seems remarkably complacent in his answers. I invite him to travel more frequently on Eurostar to see the reality of the situation. Looking forward, the new EES will be accompanied next year by the European Travel Information and Authorisation System, or ETIAS. That will cost us €7 each to visit EU countries, as well as introducing new systems that require fingerprints. Can the Minister tell us what preparations the Government are making to expand capacity at border control for these more comprehensive checks and to raise public awareness of the new requirements?

[Lord Murray of Blidworth (Con)]

As the noble Baroness will be aware, the European scheme requires people in advance to obtain these authorisations and to deposit the biometrics. It is not anticipated that this will cause delays at the border at St Pancras, as far as I am aware. As I say, for the reasons I gave to the noble Viscount, the anticipation is that increased digitisation will lead to faster use of e-gates.

[Baroness Blackwood of North Oxford (Con)]

My Lords, I was very interested in the Minister’s answer to the noble Viscount, Lord Stansgate, and the recent answer regarding digitisation at ports. Does the Home Office intend to update the biometrics strategy, which was last updated in 2018, given some of the challenges with future-proofing these technologies and keeping up to date with AI and other technologies?

[Lord Murray of Blidworth (Con)]

I can confirm to my noble friend that the Home Office takes seriously its duties to review the ethics of the biometrics that are retained. That is definitely on our radar as we progress the future border improvement scheme and the increasing use of digitisation to accelerate the rate at which people pass through ports and airports.

[Lord Blunkett (Lab)]

My Lords, will the Minister be kind enough to do a bit of homework so that in three weeks’ time, when answering my Question on the Order Paper, we might have a detailed appraisal of the real challenges that will exist on the back of the questions that have just been asked?

[Lord Murray of Blidworth (Con)]

I of course differ from the noble Lord on the quality of the research carried out by my officials: I am satisfied that I have correctly answered the questions.

[Baroness Coussins (CB)]

My Lords, on speeding things up, is there any truth in the rumour that the Government want to deal with the asylum backlog by requiring applications in writing in English, using online translation tools? If so, is the Minister aware that where complex details and evidence on trafficking, for example, are machine translated, the frequency and severity of errors in this unregulated field is notoriously high, and should not be used without human oversight, such as the provision of professionally qualified public service interpreters?

[Lord Murray of Blidworth (Con)]

I am afraid that that question is a very long way from the Question about steps to increase the flow of passengers through the border control at Eurostar, and the Companion is quite clear on this topic. If the noble Baroness wishes to ask questions about this, she must do so in the correct way.

[Lord Snape (Lab)]

Is the Minister aware that it is not just at St Pancras that these extra checks are causing problems? Eurostar trains have not stopped at Stratford International or Ebbsfleet International for some time and, according to the train company, there is no prospect of their doing so because of the extra delays caused by these checks. Does the Minister regard the fact that people living in those areas must travel to St Pancras to get to Paris, Brussels or anywhere else as a triumph of Brexit, or shall we just put it down as something that the Foreign Office is really not conscious of in the first place?

[Lord Murray of Blidworth (Con)]

I thank the noble Lord for that question. He is of course right that Eurostar trains no longer stop at those intermediate stations to take international passengers. I am not sure there is any reason from the Border Force perspective why they have not been reopened; as I understand it, these are matters for the train operating company. I am happy to look into the matter further, but that is the only answer I can give at this time.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, the Minister has given some very optimistic answers today, and I hope he is correct. What if he is wrong?

[Lord Murray of Blidworth (Con)]

I am sure the noble Lord will bring me back to answer questions about it.

[Lord McLoughlin (Con)]

My Lords, the simple fact is that, yesterday, we saw a great achievement by the Prime Minister in the Windsor agreement. If there are further problems for Eurostar being able to operate up to capacity, does not the Minister think that there is now a better chance of getting a negotiated agreement with the French and other Governments on this issue?

[Lord Murray of Blidworth (Con)]

I certainly agree with my noble friend. It is clear that we have an ongoing dialogue with the French on many issues, particularly in the department for which I appear. I entirely agree with what my noble friend says.

Authority to Carry Scheme and Civil Penalties Regulations 2023

Lord Murray of Blidworth Excerpts

Monday 27th February 2023 Lords Chamber

Moved by

[Lord Murray of Blidworth]

That the draft Regulations laid before the House on 9 January be approved.

Relevant document: 26th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 21 February

Motion agreed.

Asylum Seekers: Accommodation in Hotels

Lord Murray of Blidworth Excerpts

Tuesday 21st February 2023 Lords Chamber

[Lord Howarth of Newport]

To ask His Majesty’s Government when they expect to discontinue the practice of accommodating asylum seekers in hotels.

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

The Home Office is working to reduce the Government’s dependency on hotels for contingency accommodation through a package of long-term and short-term measures. The full dispersal model increases the number of suitable properties that can be procured for destitute asylum seekers across the United Kingdom.

[Lord Howarth of Newport (Lab) [V]]

My Lords, the Immigration Minister admitted in January that some 200 child asylum seekers were missing. Will the noble Lord admit that the abduction by criminal gangs of these children placed in hotels represents a disastrous failure of responsibility by the Home Office? Does he also acknowledge that the Home Secretary’s inflammatory language effectively licensed the far-right racists and bullies who besieged the Suites Hotel in Knowsley and are planning other brutalities? More than two months ago, the Prime Minister said that enough is enough and promised to end the use of hotels as quickly as possible. What steps, on what timetable, will the Government take to fulfil that promise?

[Lord Murray of Blidworth (Con)]

I will deal first with the question about UASCs. As I updated the House in an earlier answer, of course unaccompanied asylum-seeking children are not detained or in any way restrained from leaving hotels. If they choose to leave, they can do so. There is no evidence to suggest that 200 people have been kidnapped, as the noble Lord appears to suggest. Of course it is a matter of great concern when unaccompanied asylum-seeking children go missing, and there are protocols in place, as I have already informed the House, in relation to involving the police in their relocation. On the second point he raised, there is certainly nothing to be achieved by the use of language which exacerbates the issue, but the problem around the accommodation of asylum seekers in hotels is caused by the large numbers of people crossing the channel. Finally, on the question of what steps are being taken, as I have already said, the Home Office is implementing the full dispersal model in an attempt to house those in hotels in private rented accommodation and, as announced in April last year, the intention is to do that fairly across the local authorities across the United Kingdom.

[Lord Bellingham (Con)]

My Lords, surely the key to solving the hotel crisis is to break the business model of the people traffickers. The only way to do that is with the French, through close intelligence co-operation and a shared policing initiative. Obviously the £63 million announcement in November to ensure that British police are posted on to French beaches is a move in the right direction. How much of that deployment has taken place, and will this be on the agenda for the forthcoming summit between our Prime Minister and President Macron?

[Lord Murray of Blidworth (Con)]

My noble friend is right that breaking the business model of the people smugglers is vital, and the agreement we recently made with the French Government will go some way to achieve that. The other aspect will be the forthcoming Bill in relation to stopping the small boats, and I look forward to the support of all those in the House when it comes before your Lordships.

[Baroness Hamwee (LD)]

My Lords, we have hotels accommodating young asylum seekers, although we want to bring that to an end. Are the Government satisfied that their contracts with the providers deal properly with their safeguarding responsibilities? Will the Minister publish the results of the Home Office’s monitoring and supervision—as I hope that it is doing—of the providers’ performance, including checking that the many staff involved are properly DBS checked?

[Lord Murray of Blidworth (Con)]

The contracts with the three providers, who then engage the hotel accommodation, are of course commercially sensitive and the Home Office cannot therefore publish their contents. However, I am satisfied that sufficient safeguards are built into those contracts, and I reassure the noble Baroness that there is a requirement that all staff are appropriately DBS checked.

[Lord Hylton (CB)]

My Lords, only yesterday the Minister, in reply to a Written Question, gave very precise figures for unaccompanied asylum-seeking children placed in hotels and for the numbers who had gone missing. Will he therefore give us a better indication of when more suitable accommodation will be found for such people?

[Lord Murray of Blidworth (Con)]

Unaccompanied asylum-seeking children who have arrived on a small boat are first referred to the Kent intake unit. Then there are five specific hotels for the use of unaccompanied asylum-seeking children, and as soon as possible they are transferred to the care of local authorities. This is clearly a priority and it is obviously a very important matter. I take on board entirely what the noble Lord said.

[Lord Harrington of Watford (Con)]

My Lords, the Minister will be aware that the Homes for Ukraine scheme has led to 150,000 refugees from another country being settled in this country in people’s homes, while Afghans who came a year prior to that are still largely in hotels. Will the Minister look at the Homes for Ukraine scheme, see what lessons can be learned, and make sure there is a standing scheme of sponsorship and hospitality which will take refugees from wherever the Government decide they should come?

[Lord Murray of Blidworth (Con)]

Of course I will look at the proposal that my noble friend recommends. The Homes for Ukraine scheme is different from Afghan applications for asylum in that it is anticipated—and indeed encouraged by the Government of Ukraine—that those Ukrainians will return to Ukraine after the danger has passed.

[Lord Coaker (Lab)]

It was never supposed to be like this. The Government’s use of hotels is a result of a catastrophic failure of their policy. People are waiting years for an asylum decision, and we now have hundreds of children going missing. Alongside that, we have right-wing extremist groups using these hotels as a way to foment community disunity. What are the Government going to do to tackle right-wing extremism and deal with the policy that is leading to these problems in the first place?

[Lord Murray of Blidworth (Con)]

Clearly, the instances of violence we saw in Knowsley last week were to be deplored. Indeed, the House will be reassured to know that the Home Office has in place a careful programme to deal with these issues. It is hoped that those in hotels can feel secure as a result of knowing that the Home Office has in place arrangements to protect asylum seekers, but of course that has to be balanced against the liberty of people to protest. These are all matters being carefully considered by the department.

[The Lord Bishop of Durham]

My Lords, slightly contrary to what the Minister said earlier, surely one of the main reasons hotels are being filled is because accommodation is being blocked, in a sense, because so many applications have not been processed in due time. Could the Minister update us on the reduction in the numbers awaiting their claims being dealt with, as was promised in January? Have they been reduced, and by what number?

[Lord Murray of Blidworth (Con)]

I am afraid that I must disagree with the right reverend Prelate. The reason for the number of people in hotels is the number of people crossing the channel illegally and causing accommodation to be needed. It is not simply a question of a failure to determine their asylum claims, not least because those whose claims are determined are then accommodated by local authorities in very similar types of housing.

[Lord Scriven (LD)]

My Lords, those statistics are not correct. The House of Commons Home Affairs Select Committee showed that, from quarter 2 in 2017 to quarter 2 in 2022, applications were up by 103%, but in the same period the backlog had quadrupled, particularly for those waiting over six months. The committee came to the conclusion that the slow processing of applications had been a bigger driver of the increase in the backlog than the number of applications. Why does the Minister not know that, and why does he not start dealing with that issue, which is causing people to be held in hotels?

[Lord Murray of Blidworth (Con)]

The question we are addressing today is about the reason for the number of people in hotels, and I say again that the reason is the number of people crossing the channel. When we bring forward our Bill, the message will go out and the business model of the people smugglers will be smashed. I encourage the noble Lord to support the Bill.

Authority to Carry Scheme and Civil Penalties Regulations 2023

Lord Murray of Blidworth Excerpts

Tuesday 21st February 2023 Grand Committee

Moved by

[Lord Murray of Blidworth]

That the Grand Committee do consider the Authority to Carry Scheme and Civil Penalties Regulations 2023.

Relevant documents: 26th Report from the Secondary Legislation Scrutiny Committee

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

My Lords, the purpose of these regulations, laid under Sections 23(2) and 24(7) of the Counter-Terrorism and Security Act 2015, is to give effect to the Authority to Carry Scheme 2023, which I will refer to as the 2023 scheme. This makes consequential amendments to the Authority to Carry Scheme (Civil Penalties) Regulations 2015 and revokes the Authority to Carry Scheme and Civil Penalties Regulations 2021. Once given effect, the 2023 scheme will in turn revoke and replace the Authority to Carry Scheme 2021.

Authority to carry is, in effect, the UK’s “no fly” scheme. It is operated to prevent individuals, including known terrorists, serious criminals and those subject to sanctions, being able to travel to and from the United Kingdom. The scheme is operated by the National Border Targeting Centre, which processes information about individuals—both passengers and crew—intending to travel to or from the United Kingdom. Where an individual is identified as being in a class of persons described in the scheme, the carrier may be refused authority to carry the individual to or from the United Kingdom.

The 2023 scheme applies to aircraft, ships and trains whose operators have been required by law to provide passenger and crew information before departure. It applies on all international routes, including journeys within the common travel area, where advance passenger and crew information is received from a carrier.

The authority to carry scheme continues to be extremely successful. Since its introduction in March 2015, the National Border Targeting Centre has refused carriers authority on more than 11,200 occasions. It is a daily occurrence. These are all individuals who would otherwise have arrived in the United Kingdom and been refused leave to enter by Border Force officers.

The primary reason we are introducing the 2023 scheme is in preparation for the introduction of the electronic travel authorisation—a key component of a universal permission to travel, which will require all individuals to have valid permission before travelling to this country. There will be some individuals who apply for an electronic travel authorisation but whose application is refused. Others may be granted one that is subsequently cancelled—for example, if it is established that a false declaration has been made about their previous good conduct. By including these classes of individuals in the 2023 scheme, we can ensure that they are prevented from travelling to the United Kingdom.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the Minister for introducing this statutory instrument. The SI replaces the 2021 no-fly scheme that prevents terrorists, serious criminals and others travelling into the UK via aircraft, ships or trains. The scheme was introduced in 2012 and was updated by statutory instrument in 2015 and 2021.

The 2023 scheme extends the range of people who carriers can be refused authority to carry to those refused an ETA or those travelling without a valid document or travelling on the document of another person. Penalties of up to £50,000 were put in place on carriers that breached the terms of the scheme. The maximum penalty has not increased since the original scheme in 2015. Is there any scope for increasing this maximum, along the lines of inflation or something like that? This question was asked in 2021, but I am not sure that my noble friend who asked it got a reply.

The ETA scheme has not been introduced, nor have details been released on how it would work, who would need to apply for it, how much it would cost or on what grounds it would be revoked. As we have heard, the Government have stated that it will be in place by the end of 2024. Can the Minister confirm that that is still the case for when it will be introduced?

The noble Baroness, Lady Hamwee, asked a number of pertinent questions about the alignment of the ETA with EU regulations and how it will work with the wider carrier network, if I can put it like that.

In response to questions raised in the Commons this month, the Minister stated that 23 penalties have been imposed over the seven years of the scheme and that the number of people prevented from travelling has stayed consistent over this time. The figures given were that 1,702 people were prevented from boarding in 2016-17 and 1,700 in 2022-23. In the 2021 Lords debate, the Minister did not respond to questions about whether some carriers had been repeat offenders. I do not know whether the Minister has any information on whether particular carriers are repeat offenders when fines are given to them.

The Explanatory Memorandum states:

“Updated guidance will be provided to industry”,


but no detail has been provided on when that will take place. Can the Minister tell us when that updated guidance may be available?

Finally, there is the status of transit passengers. How are they brought into the scope of these regulations and will they be affected? Having said that, we support the statutory instrument.

[Lord Murray of Blidworth (Con)]

I thank noble Lords for their contributions and questions. I think I have answers to them all, and I will take them in turn.

I turn first to matters raised by the noble Baroness, Lady Hamwee, who asked when the 2023 scheme will come into effect. Regulation 2 of the draft instrument provides that:

“The Authority to Carry Scheme … comes into force on the day on which these Regulations come into force.”


That is mirrored in paragraph 28 of the scheme, which observes that it will come into force on the day the authority to carry scheme regulations come into force. Obviously, that is the date on which the new scheme will be in force. I can put the noble Baroness’s mind at rest. If she were to compare the 2021 scheme and the 2023 scheme, a lot of the text is the same. The changes introduced by the new scheme are simply to effect the changes that I outlined in my earlier remarks. There will not be any gap that will affect the implementation of the scheme or proceedings brought under the earlier scheme, because they will then simply be under the new scheme that is in force.

The noble Baroness asked whether the scheme has to align with broader issues. I hope I have already addressed that; it is making only minor changes, so it should align and there should not be any difficulties. The provisions about ETAs are there in readiness for the implementation of ETAs along the lines of the timetable suggested by the noble Lord, Lord Ponsonby.

--- Later in debate ---

[Baroness Hamwee (LD)]

As the Minister is coming to the end of his response, I remind him about my questions on how it will work when there is to be a refusal in relation to someone whom the Secretary of State is in the process of making a decision about or where someone would be refused entry clearance or would be refused under the rules and so on. These are issues of quite considerable importance and principle because they are proposing that refusals may be made before the Secretary of State has made a decision. Can the Minister say anything about that?

[Lord Murray of Blidworth (Con)]

Forgive me: I covered that in my own mind when I explained the scheme, but I realise that I should have spelled it out more clearly, which I will now do. Those parts of the scheme are unchanged; these changes do not affect that part of the scheme, but I can certainly answer the noble Baroness’s question.

Where the Secretary of State is considering somebody’s application, they cannot travel. They can travel only once they have authority to enter the United Kingdom. It is not the position that we are refusing their application because we are still considering it; the point is that that passenger should not be trying to travel without a valid authority to travel. In the event that somebody applies for a visa and it is refused, it is open to them to apply to review that decision, internally or by legal proceedings. Of course they are entitled to do that, but people will not, and passengers do not, try to travel while their decision is still being determined because they do not have permission at that point to travel.

[Baroness Hamwee (LD)]

The scheme uses language such as:

“Individuals … in relation to whom the Secretary of State is in the process of making a decision that the individual be made subject of an exclusion order”.


That does not seem completely to reflect what the Minister said. Perhaps I am just not sufficiently familiar with scheme-speak.

[Lord Murray of Blidworth (Con)]

This is the reference in paragraph 14(d) of the draft scheme. Clearly, this is not being added by these changes. However, I can reassure the noble Baroness that the courts have found in favour of decisions to refuse authority to carry where the Secretary of State is in the process of making a decision to exclude. Obviously, if a person has made an application and the exclusion order is not made, they are free to travel once they have their visa. It does not have the effect of precluding their travelling; it simply means that they cannot travel on that occasion. If, however, they are the subject of an exclusion order, repeated applications will simply result in the same outcome: they will be refused authority to travel by the carrier.

[Lord Paddick (LD)]

My Lords, I hope my asking a question is in order; I have been here throughout the debate. On a couple of occasions, the Minister said that this scheme applies to all carriers that are required to provide details of passengers and crew, on international routes and from the Republic of Ireland. Does that mean all carriers, or all carriers that are required to provide that information? If it is the latter, on what basis do the Government require some carriers to provide that information and not others?

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

As I sought to make clear in my earlier remarks, the common travel area is obviously where the slight difficulty arises as there is no obligation to show your passport to get in and out. It is only that category of cases; for every other international flight we would anticipate that the scheme applies. If one were taking an internal flight, obviously there would be no need to provide that sort of information, as you would expect. I hope that answers the noble Lord’s question.

Again, I am grateful for the contributions made and the points raised. By giving effect to the authority to carry scheme 2023 we will build on the existing policy, which has proven effective to date. It will underpin the operation of a critical element of our future border and immigration system, namely universal permission to travel, and will ensure the continued safety and security of the UK border.

Motion agreed.

Rwanda: Memorandum of Understanding

Lord Murray of Blidworth Excerpts

Monday 6th February 2023 Lords Chamber

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

My Lords, I am grateful to the noble Baroness, Lady Hayter, for securing this debate. I must apologise that I will not be able to address all noble Lords’ contributions during this response. I am delighted to provide the clarity the noble Lord, Lord Ponsonby, rightly asked me to provide as to the reasons why a memorandum of understanding was chosen in this regard.

The proposal to relocate asylum seekers to Rwanda has been, and continues to be, the subject of considerable public debate. The number of people crossing the channel in small boats has increased exponentially, placing our asylum system under severe pressure as well as the extent to which services can be provided to those coming to our shores. Not only is every crossing attempt a potential tragedy, as we have seen far too often, but the people arriving via these small boats have travelled through and then left safe countries with fully functioning asylum systems.

Tackling the global migration crisis requires global solutions, and the United Kingdom’s ground-breaking partnership with Rwanda is an essential part of that approach. This policy will help to disrupt the business model of people smugglers, those gangs putting lives at risk using dangerous, unnecessary and illegal routes into the UK. The long-term strategic bilateral partnership that we intend to deliver through the migration and economic development partnership between the UK and Rwanda is built on the shared understanding that the current conventions for dealing with refugees and migration no longer work. I agree with my noble friend Lord Udny-Lister that bilateral agreements are also important, but we need new approaches at scale to ensure that immigration is orderly and controlled. Noble Lords will appreciate that there is an urgency and considerable public interest in deterring unnecessary, illegal and dangerous journeys to the UK.

I will now turn to the Question posed by the noble Baroness, Lady Hayter, on the decision to use a memorandum of understanding for the migration and economic development partnership. As indicated in the Government’s response to the International Agreements Committee’s report, the Government’s decision to use a memorandum of understanding—a non-legally binding instrument—has the benefit of allowing the detail of the partnership to be flexible. The technical details may be adjusted quickly if needed with the approval of both partners.

The UK and Rwanda have a well-established relationship. There is a significant history of our two Governments working together, as the noble Earl observed. Most importantly, the Rwandan Government have reason to know that the United Kingdom places the utmost importance on Rwanda’s compliance in good faith with the terms of the memorandum. The obligations placed on Rwanda under this partnership are laid out clearly in the memorandum, and they ensure that both countries have the same understanding of these obligations.

Indeed, in its judgment, the Divisional Court of the High Court at paragraph 65 found:

“The terms of the MOU and Notes Verbales are specific and detailed. The obligations that Rwanda has undertaken are clear. All, in one sense or another, concern Rwanda’s compliance with obligations it already accepts as a signatory to the Refugee Convention.”


I can therefore confirm to the House that we are confident that Rwanda will honour its commitments. This position was also considered by the High Court at paragraphs 70 to 71 of its judgment, where it stated that

“the conclusion that Rwanda will act in accordance with the terms of the MOU and the Note Verbales rests on HM Government’s experience of bilateral relations extending over almost 25 years and the specific experience of negotiating the MOU over a number of months in 2022”.

Furthermore, the court found that

“the Home Secretary did not act unlawfully when reaching the conclusion that the assurances provided Rwanda in the MOU and Notes Verbales could be relied on”.

I should also note that adopting a treaty, rather than using memoranda as suggested by the noble Baroness, would not necessarily have afforded individuals the right to raise disputes in the way some noble Lords have suggested.

While the Government cannot comment on ongoing legal proceedings, no court has ruled that this partnership is unlawful. In fact, the High Court, in the 19 December ruling, said that the arrangements entered into for the relocation of asylum seekers to Rwanda is consistent with the refugee convention, the European Convention on Human Rights and the statutory and other legal obligations on this Government.

I am therefore disappointed by the views expressed by the noble Lord, Lord Sahota, the noble Earl, Lord Sandwich, and others on the safety of Rwanda, which appear to be ill-informed and contrary to the High Court’s judgment. In paragraph 71, the court found that the Home Secretary’s assessment that

“Rwanda is a safe third country, was neither irrational, nor a breach of article 3 of the ECHR”.

The domestic legal framework that gives effect to removals under this partnership is backed by legislation which has already faced parliamentary scrutiny.

I welcome the court’s judgment that this policy is lawful, as we have maintained throughout. We will, of course, pay extremely close attention to the individual circumstances of those considered for relocation. Decisions will be taken on a case-by-case basis, and nobody will be relocated if it is unsafe or inappropriate for them.

The arrangement requires Rwanda to process claims in accordance with international standards, as I previously mentioned, and it ensures protection from inhumane and degrading treatment and from refoulement. We have assessed Rwanda to be a fundamentally safe and secure country, with respect for the rule of law and a strong track record of helping those in need. In paragraph 51 of its judgment, the High Court itself said that

“Rwanda has a significant history of providing asylum to refugees”.

This session concerned an important political arrangement underpinning our partnership. The Government carefully considered the report from the House’s committee which the noble Baroness chairs. As noted in our response to the report, we published the memorandum of understanding in full transparency in April last year, very shortly after it was concluded. The MoU was negotiated with utmost care and attention by both Governments.

It is not at all fair to suggest that His Majesty’s Government have avoided scrutiny. Ministers have engaged fully with Parliament regarding this arrangement, including via Oral Statements, Parliamentary Questions and written correspondence. Ministers and senior officials have made numerous appearances before committees, and we are here today discussing the issue. Of course, all of this is on top of the High Court’s very detailed consideration of this document.

The Government take the view that the constitutional convention known as the Ponsonby rule, as it existed and was practised, was in its entirety put on a statutory footing by the CRaG Act. We do not accept that there has ever been any convention whereby non-legally binding arrangements are routinely submitted to parliamentary scrutiny, and this is borne out by the consistent practice of successive Governments. Parliament did not consider disclosure of non-legally binding arrangements to be part of the Ponsonby rule when it looked to put the convention on to a statutory footing in the Constitutional Reform and Governance Act.

With that said, while we responded to the urgency and exceptional public interest in deterring these dangerous crossings to the United Kingdom, it is not at all right to say that this was rushed or that scrutiny was evaded. We have been clear that the memorandum of understanding between the UK and Rwanda is a non-legally binding instrument. Such instruments are common mechanisms for recording political commitments and arrangements between states and—as I have already said—allow for flexibility.

A decision on whether to use a treaty or non-legally binding instrument will depend on various factors. Ultimately, the decision will be based on whether there is a need for legal enforceability or whether a non-legally binding commitment would be appropriate. While we have never claimed that the terms of the memorandum are to be legally binding under international law, the arrangements we have put in place provide sufficient assurances to us—and indeed have satisfied the High Court—that the arrangement will be operated in line with international obligations and in a manner which ensures the welfare and safety of those people relocated under it. I am sure that the noble Baroness will be aware of the means by which the delivery of the scheme will be overseen and assessed against the assurances in the memorandum.

I particularly highlight the fact that a monitoring committee has been appointed, as was referred to during the debate, whose members are independent from both the Rwandan and United Kingdom Governments, and who will be able to look at every part of the relocation process and will independently assess all conditions. The monitoring committee will produce a summary report for publication yearly for all to see.

[Lord Purvis of Tweed (LD)]

The Minister has only a few moments left. This is the second time that a Front-Bencher has asked specific questions which the Minister has refused even to acknowledge. I regret that I am going to have to escalate this up through the usual channels. It is just not acceptable that the Minister at the Dispatch Box does not even acknowledge valid questions from a Front Bench.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I think the noble Lord’s question related to the legal basis for the agreement in domestic law; I have addressed that in detail in the course of my speech to the House.

[Lord Purvis of Tweed (LD)]

No, you have not.

[Lord Murray of Blidworth (Con)]

Well, I am sure that we can discuss this on another occasion.

[Baroness Hayter of Kentish Town (Lab)]

Before the Minister sits down—I think we have six minutes—he said that the Government used an MoU rather than a treaty because it could be amended. Does he accept that the detail of treaties can also be amended? More importantly, on an MoU, surely that could still—by the choice of the Government—have been laid for 21 days to give parliamentary scrutiny. Parliament will not be able to scrutinise the committee referred to by the right reverend Prelate, but the MoU could have been laid for 21 days. Does the Minister accept those two things, that the treaty itself could be adapted and that an MoU could have been laid before Parliament?

[Lord Murray of Blidworth (Con)]

I thank the noble Baroness for those two questions. On the first point, no, to amend a treaty would be a more cumbersome process than the flexibility afforded by a memorandum of understanding. On the second point, it is clear that Parliament had considerable opportunities for scrutiny, as I have set out, and there was no want of scrutiny from the method adopted.

[Lord Lansley (Con)]

Can I press my noble friend on one point? Does he agree that the Government could have chosen to lay a memorandum of understanding under CRaG even if not required to do so, and that, as a result, it could have been debated in the House of Commons, which would have had a choice on whether to support the agreement or otherwise?

[Lord Murray of Blidworth (Con)]

I appreciate the hypothetical question that my noble friend asks. As I say, the issue was one for the Statements that were provided to the House of Commons, and it seems that there was no want of scrutiny. Therefore, I am afraid that I do not accept that contention.

[Baroness Lister of Burtersett (Lab)]

My Lords, the noble Lord said that he was not able to answer all the questions asked. Will he please write to noble Lords with the answers?

[Lord Murray of Blidworth (Con)]

Yes, certainly; we will have a look through them.

Refugees (Family Reunion) Bill [HL]

Lord Murray of Blidworth Excerpts

3rd reading
Friday 3rd February 2023 Lords Chamber

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I also congratulate the noble Baroness on taking this Private Member’s Bill through the House—that is no mean feat in itself—and I wish the Bill well in the other place.

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

My Lords, I too thank the noble Baroness, Lady Ludford, for her remarks and thank all those who contributed in previous debates on the Bill. The Government’s policy already fully recognises that families can become fragmented because of the nature of conflict and persecution, and the speed and manner in which those seeking protection are often forced to flee their own country. Our family reunion policy allows those recognised as refugees or granted humanitarian protection in the United Kingdom to sponsor their immediate family members to join them here, if the family union was formed before their refugee sponsor fled their country of origin. This has seen more than 43,700 individuals reunited with their refugee family members since 2015. This is a significant number, which highlights the policy’s success as a safe and legal route for families to reunite in this country.

I remind noble Lords that this Government fully support the principle of family unity and share the concern for those families who have been separated by conflict or oppression. It is for precisely this reason that the Government already have a comprehensive framework for reuniting refugees with their families here in the UK. I remind noble Lords that this framework is already set out in the Immigration Rules and in our refugee family reunion policy, which negates the need for the Bill and is the reason why the Government do not support it.

[Baroness Ludford (LD)]

My Lords, I thank the Minister for replying. I am obviously disappointed but not surprised that the Government do not support the Bill, but I am afraid I must dissent from his assertion that the Government fully support the principle of family unity, because that really is not translated into policy and practice. Yes, he cites the number of family reunion visas since 2015, but it is difficult and in some cases costly and long-winded to obtain one, and it is unjustifiable to put all these barriers in the way. The rules are unreasonably restrictive and would be much improved with the Bill, so I live in hope that, one day, this or another Government will see the light and understand that it is not just compassion but hard-headed realism and cost-effectiveness that drive the reasoning of the Bill and other suggestions for improved, easier family reunion.

Afghan Citizens Resettlement Scheme

Lord Murray of Blidworth Excerpts

Wednesday 1st February 2023 Lords Chamber

[Baroness Hodgson of Abinger (Con)]

I beg leave to ask the Question standing in my name on the Order Paper. I draw the attention of the House to the fact that I co-chair and run the All-Party Parliamentary Group on Women, Peace and Security, and set up and run the Afghan Women’s Support Forum.

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

Operation Pitting was the largest UK military evacuation since the Second World War. About 15,000 people were evacuated to the United Kingdom. Since then, a further 6,000 people, including those under ACRS pathway 1, have arrived via neighbouring countries. The Home Office is working to assure information on its caseworking systems. This includes reporting on total volumes by gender. Once this work concludes, the Home Office will include all Afghan resettlement statistics, including gender breakdown, in its quarterly immigration statistics publications, the next of which is due on 23 February.

[Baroness Hodgson of Abinger (Con)]

I thank my noble friend for his Answer, but I am disappointed that he cannot give me specifics on the Afghan citizens resettlement scheme. I gather that there is no application process for this and the slow speed, lack of communication and transparency creates a feeling of abandonment for the Afghan people. How are eligible people identified for this scheme? Under pathway 3, there is provision for those who are particularly vulnerable; I am talking about the women and girls at risk. Does my noble friend realise that some vulnerable women who either held significant positions or were related to those who did have been on the run and hiding since the Taliban took over? Can he imagine what it feels like to be hunted down in this way? We have only to remember the murder of the ex-Afghan MP Mursal Nabizada a few weeks ago. What steps are His Majesty’s Government taking to ensure that those women human rights defenders are able to access the ACRS? How many do they hope to accept this year?

[Lord Murray of Blidworth (Con)]

I agree with much of what my noble friend says. By way of context, the Afghan citizens resettlement scheme was divided into three pathways, to which she alluded, the first of which concerned those evacuated during Operation Pitting and those on the removals list. Pathway 2 is the principal method; it concerns referrals from the UNHCR. Pathway 3 is administered by the Foreign, Commonwealth and Development Office. That is the pathway envisaged for Chevening scholars, GardaWorld employees and those who work for the British Council. I understand that the Foreign Office has received some 11,500 expressions of interest that are being worked through at the moment. In relation to her question on vulnerable women and children, I say that the principal focus of the ACRS has been to protect the vulnerable. Since the events in Afghanistan last August, thousands of women and girls have been brought to safety in the UK, including female judges, women’s rights activists and a girls’ football team. Of course, in pathway 2 the UNHCR makes referrals based on an assessment of protection needs, including vulnerabilities.

[Baroness Coussins (CB)]

My Lords, at the end of December there were an estimated 150 Afghan interpreters still in Afghanistan, eligible but unprocessed under either the ACRS or ARAP. Given that many of them would already have been eligible under the previous ex-gratia scheme or the intimidation policy designed primarily for interpreters, can the Minister commit to fast-tracking these cases for a group of individuals to whom the UK owes an incalculable debt of gratitude, and who remain extremely vulnerable to Taliban threats and violence?

[Lord Murray of Blidworth (Con)]

I entirely understand the point the noble Baroness makes. Obviously, those who were employed by the British Government are entitled to be relocated under the Afghan relocations and assistance policy. The Ministry of Defence is working with the Home Office in relation to the assistance provided for those people. I am happy to look further into the 150 people whom she indicates. I hope that I might be able to obtain some further details and then look into that for her.

[Baroness Smith of Newnham (LD)]

My Lords, like the noble Baroness, Lady Hodgson, I am disappointed that the Minister was not able to give us any meaningful statistics today, beyond a figure of 6,000 people. I have had conversations with the noble Lord, Lord Ahmad of Wimbledon, who has spoken to the officers of the APPG on Afghan Women and Girls. Would it be possible for the Minister to undertake for similar meetings to be held with the Home Office, ideally on a cross-party basis, and with DLUHC? Many of the issues about bringing in women and girls, and indeed British Council contractors, link to visas and the provision of accommodation. However hard the FCDO and the MoD are working, those departments cannot deal with these issues alone. Will he agree to a meeting?

[Lord Murray of Blidworth (Con)]

Pathway 3 applications, as I have said, are led by the FCDO and its engagement will be the principal point of contact. Of course the Home Office works closely with the FCDO and will continue to do so. I will keep the question of a meeting under review and, if it becomes necessary, certainly.

[Lord Singh of Wimbledon (CB)]

My Lords, does the Minister agree that our intervention in Afghanistan directly led to the strengthening of the hands of extremists in the Taliban, causing huge difficulties for ordinary Afghan citizens, and that we have a linked moral responsibility to look to the well-being of those who we have caused to be refugees? Does he also agree that if we wish to reduce the flow of immigrants that has worried so many people, we should be much more careful in thinking first about embarking on such interventions?

[Lord Murray of Blidworth (Con)]

I fear that this is not the correct place for me to discuss the causation of the return of the Taliban to power in Afghanistan. But in relation to the point the noble Lord raises about the United Kingdom’s obligation to those who helped UK forces and staff, diplomatic and otherwise, during our period in Afghanistan, then I agree. That is something which the two Afghan schemes are designed to address.

[Lord Swire (Con)]

My Lords, some people put the amount of Afghan refugees in Pakistan at up to half a million, some of whom are extremely vulnerable, particularly young women, former judges and former politicians. They live under a constant threat of being returned to Afghanistan, where they would certainly meet with jail or possibly worse. What conversations have the Government had with the Government of Pakistan to lift this threat of being returned to Afghanistan?

[Lord Murray of Blidworth (Con)]

I am afraid that I cannot answer my noble friend’s question. That is probably a matter for the Foreign, Commonwealth and Development Office but I can no doubt ask the relevant Minister to write to him.

[Lord Coaker (Lab)]

My Lords, as the noble Baroness, Lady Hodgson, reminds us, in discussing the Afghanistan resettlement scheme and the help we rightly give to some, we should never forget the continuing persecution of women and girls across the world. Of the three pathways under the Afghan scheme we are accepting at-risk people from three groups: British Council, GardaWorld and Chevening alumni. Within this, is it only those who worked for the UK who are considered, or is any other priority given to women and girls?

[Lord Murray of Blidworth (Con)]

As I hoped to make clear in an earlier answer, the first pathway relates to those removed during August 2021 and those who should have been removed. The second pathway relates to those referred by the UNHCR to us, and the third pathway contains the three categories that the noble Lord just identified. The short answer to the question is no, it is not just people who worked for the United Kingdom Government in various forms; it is broader than that because the UNHCR refers refugees to us who have applied.

[Lord Stirrup (CB)]

My Lords, how many Afghan refugees resettling in the UK are still being housed in hotels? What mechanisms do the Government have in place for tracking the successful integration of such refugees, particularly in housing, education and employment?

[Lord Murray of Blidworth (Con)]

Forgive me; although I have a lot of knowledge about the situation with hotels, I am afraid I do not have those statistics with me today, given the topic of the Question. I will need to write to the noble and gallant Lord about that.

Public Order Bill

Lord Murray of Blidworth Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

I finish with the point I started with: what protest is not about a current dispute? I cannot think of any, because people do not protest unless there is a dispute, yet the Government are saying to us that that is part of the definition they want to pass. The Minister has a really tough job defending the indefensible here. I am interested to hear what he has to say, as, I am sure, are most of us. But how on earth can he put before this House an issue as serious as the noble Lord, Lord Faulks, has said it is—I accept that—and then provide a definition that just does not make sense. The Government are in a real mess, and they ought to get themselves out of it pretty quick.

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

My Lords, clearly, I intend to shed some light. The noble Lord, Lord Coaker, has generated a lot of heat on the purpose of “reasonable excuse”. I begin by thanking the noble and learned Lord, Lord Hope, for tabling his amendments. These exclude protest as a reasonable excuse for the criminal offences within the Bill. We would say that this amendment is consistent with the reasoning of the Court of Appeal in the Colston case in relation to the criminal damage allegations that were at issue in that case.

These amendments implement the Constitution Committee’s recommendation that instances of “reasonable excuse” in the Bill are defined. I thank the committee for its thoughtful analysis in this regard, which has helpfully informed much of today’s debate. The amendments from the noble and learned Lord also follow from the Supreme Court’s recent judgment that a lack of reasonable excuse in criminal offences is not necessarily incompatible with the European Convention on Human Rights. The noble Lord, Lord Faulks, has set out a compelling case for these amendments, so I will try to refrain from repeating the same points. Similarly, the noble Lord, Lord Wolfson, has very cogently set out the case for these amendments, and I will not repeat the points he made.

In summary: the Government support these amendments. They are necessary to ensure that these criminal offences serve their purpose. The entire reason we are legislating is to make it clear that locking on, tunnelling, and disrupting infrastructure are illegitimate tactics of protest. Now that we are satisfied that it is compatible with the European Convention on Human Rights to carve out protest as a reasonable excuse for these offences, we should do so. Parliament should make it explicitly clear that protest is not of itself a reasonable excuse for these offences. Not doing so will simply lead to protracted litigation in the courts. This much is clear from the Supreme Court’s decision in the Northern Ireland abortion clinics case.

Following from the noble and learned Lord’s amendments, the Government have tabled two more. The first similarly carves out protest from the offence of public nuisance. I take the opportunity to remind the House that the former common-law offence did not have a reasonable excuse for the offence at all. One was included in the statute on the recommendation of the Law Commission. Similarly to the offences within this Bill, and keeping in line with recent case law, we should now carve protest out of the offence.

The second amendment carves protest out of the lawful excuse for the offence of wilfully obstructing the highway. However, recognising that the offence is a low-level one, we do not carve it out in its entirety. Instead, the amendment removes protest from the reasonable excuse only where “more than” serious disruption is caused. The hope was to ensure consistency in the law; we sought to replicate the same proposed threshold of “serious disruption” in this offence. Therefore, protesters will still be able to obstruct highways to a certain degree. This, in the Government’s view, strikes the right balance between the rights of the public and the rights of protesters—an exercise that the noble Lord, Lord Sandhurst, rightly reminded the House is a fundamental part of the consideration of human rights.

Despite the definition proposed by the noble and learned Lord, Lord Hope, now not standing part of the Bill, there is still a need to clarify the circumstances in which obstructing a highway is not a legitimate exercise of one’s Article 10 and 11 rights. I would expect the precise wording to be settled as the matter is debated further by Parliament, and in such a manner as to ensure consistency and clarity for protesters, the police and the courts.

On the question from the noble Lord, Lord Deben, on the impact of such an amendment on a march such as that against the Iraq war, which we saw under the Blair Administration: under Section 3 of the Human Rights Act, this measure will still have to be read compatibly with the ECHR—a point the noble Lord, Lord Wolfson, made. Therefore, the point at which arrest and prosecution would be a proportionate interference with people’s Article 10 and 11 rights depends on the circumstances of each protest.

My noble friend Lord Sandhurst has tabled a similar amendment to those of the noble and learned Lord, Lord Hope, and the Government.

[Lord Deben (Con)]

I do not think I understand what my noble friend is saying. Is he saying that a march against the Iraq war would be acceptable? After all, it was about current issues. Very few issues were more current at the time. How would people know in advance that it would be acceptable? That is quite important, too.

[Lord Murray of Blidworth (Con)]

The reasonable excuse defence arises only once there has been a decision by the police to prosecute. The fact of the march itself is something that the authorities would have to judge, and they would have to do so in accordance with their obligations to act lawfully and in pursuance of their obligations under the Human Rights Act, including those under the provisions of that Act.

I return to the amendment from the noble Lord, Lord Sandhurst, which seeks to remove protest from the reasonable and lawful excuses of all criminal offences. While I appreciate the elegance of addressing the protest as a reasonable excuse question in one fell swoop and agree with the sentiment behind it—and find interesting the research in the Policy Exchange paper—I cannot support the amendment. Some offences, such as minor obstruction of the highway or the most minor of damage, such as that caused by water-soluble paints or dyes, can be a legitimate exercise of Article 10 and 11 rights.

The burden of proof was debated at length in Committee. The government position remains that the burden of proof should rest on the defendant. They are aware of all the facts pertinent to their case. As I made clear in Committee, it is not a novel concept for the burden of proof to rest on the individual.

I turn to the amendments in the name of the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Paddick. These take issue with the reasonable excuse defence and seek to shift the burden of proving such a defence for the criminal offences from the defendant to the prosecution, making it a key element of the offence. Amendment 35, tabled by the noble Baroness, Lady Chakrabarti, also adds

“support for … a trade dispute”

to the protected activities of acts

“wholly or mainly in contemplation or furtherance of a trade dispute”

under Clause 7. The government position remains that the burden of proof should rest on the defendant. While I understand the sentiment, Amendment 35 is not necessary as we assess that support for a trade dispute would already be captured under the defence.

I also want to address one of the criticisms that was made in Committee, which I believe has inspired some of the amendments of the noble Lord, Lord Paddick. As I made clear in Committee, the reasonable excuse defence resting on the individual does not, and would not, mean that those suspected of committing the offences would be arrested and charged without consideration of whether or not they had a reasonable excuse for their actions. With regard to the arrests, Code G of the Police and Criminal Evidence Act 1984 states that the use of the power of arrest requires the belief that an individual is committing, has committed or is about to commit an offence, and that the arrest is necessary.

With regard to charging decisions, the Crown Prosecution Service has to consider whether there is a realistic prospect of conviction at trial, and whether the suspect has a reasonable excuse will factor clearly in that decision-making process. This obligation on Crown prosecutors is set out in the Crown Prosecution Service’s Code for Crown Prosecutors in paragraphs 4.6 and 4.7. Any reasonable excuse defence that a suspect may have will be considered as part of these processes.

Finally, I have considered the proposal in the amendment from the noble Baroness, Lady Chakrabarti, to include support for a trade dispute as a reasonable excuse. I do not believe that it is necessary, as an act in support of a trade dispute is, in essence, in furtherance of one and therefore already in scope of the defence. As with the last group, I encourage all noble Lords to support the amendments from the noble and learned Lord, Lord Hope, and the Government and to reject the others.

[Lord Paddick (LD)]

The Minister said that the Northern Ireland Supreme Court case shows that the amendments are consistent with the European Convention on Human Rights. I made the point that the proportionality test that the Supreme Court made in that case was on the basis that the convention rights were restricted only within 150 metres of an abortion clinic and not outside that, whereas these amendments would apply universally and therefore, in my judgment, are disproportionate. The Minister did not address that issue.

[Lord Murray of Blidworth (Con)]

I entirely understand that that is the noble Lord’s view. The test of proportionality will, of course, be decided on the facts of each case as it arises, which will be matters that will feed into the decisions taken by the police and CPS in the charging process.

[Baroness Chakrabarti (Lab)]

I am grateful to all noble Lords who spoke in an incredibly thoughtful debate—your Lordships’ House at its best, if I may say so. Noble Lords will forgive me if I do not mention everyone, for obvious reasons of time, but I am particularly grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for explaining that sometimes reverse burdens make sense when the criminality is just so obvious, such as carrying a bladed article in public, but that linking arms is generally not thought of as the same kind of criminality.

I am also grateful to the noble and self-deprecating Lord, Lord Paddick. He may not be a lawyer, but he is certainly a better lawyer than many of us lawyers would be police officers, I suspect. His brilliant exposition of the Northern Ireland case in particular, including by way of his last intervention, demonstrates that Ziegler is not dead. As we have heard from many noble Lords in this thoughtful debate, protest is not a trump card; it will not always be a reasonable excuse for criminality. But sometimes it might be. It is not irrelevant to these matters. Good law is about rules and discretion and, without the right amount of discretion, injustice will follow.

Most of all, I am grateful to the noble Lord, Lord Deben, because it was his particular thought experiment that made me most concerned about a mass demonstration such as the one on Iraq—but it could be on another subject under another Government in future. We are talking about a mass demonstration where, quite deliberately, the police do not run around arresting everybody; they use their discretion in the public interest not to do so, so as not to cause a very hazardous situation to human beings and public order, or because they simply would not be able to arrest a large number of people.

In my development of the thought experiment from the noble Lord, Lord Deben, instead of just not arresting people and just ensuring that people are safe, certain police officers arrest only a certain type of person—say, only people in wheelchairs, or only women, who are easier to arrest, or, dare I say it, only people of a certain race. If those people alone were then prosecuted and were not permitted to argue a reasonable excuse that they were just on the demonstration like everybody else, I suggest that a grave injustice would follow. The fact of the protest is never a trump card, but sometimes it is highly pertinent.

I shall not press the amendments in my name to a Division, because I have decided, on the basis of this debate, that the priority in the time that we have is to vote against the government amendments, which is what I would urge all those concerned about this to do.