Nationality and Borders Bill

Tommy Sheppard Excerpts

Report stage & 3rd reading
Wednesday 8th December 2021 Commons Chamber

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to take part in this debate and to follow the hon. Member for North East Bedfordshire (Richard Fuller).

Yesterday we badly damaged the UK’s reputation for upholding the refugee convention and the rights of refugees, and today’s clauses risk undermining the protection offered to victims of trafficking and modern slavery. That is particularly frustrating because a lot of good work has been undertaken in Stormont, Westminster and Holyrood to put in place legislative frameworks for tackling trafficking and modern slavery.

Just as yesterday’s clauses failed to address the real failings in the asylum system, the clauses we are debating today do not address the real and significant problems we all face in our efforts to tackle trafficking. They will not lay a glove on traffickers and, in some cases, they will give traffickers extra power and ammunition over their victims and will discourage victims from reaching out for support and assisting prosecutions.

The problems we all face include: the fact we almost certainly identify only a small fraction of trafficking victims and prosecute only a small number of traffickers; the massive delays in the national referral mechanism that see victims sitting in limbo for months and years as they wait for a decision; and the failure to give so many people the stability of the decent period of leave to remain that they need to recover. None of that is addressed in part 5. Instead, it reinforces the impression that efforts to protect victims of trafficking play second fiddle to immigration enforcement, just as decent treatment of asylum seekers and refugees played second fiddle yesterday.

On that note, although I absolutely agree that what we are debating today is distinct and separate from what we debated yesterday—in fact, they should be in separate Bills—it is important that we recognise there is an overlap. Importantly, some of the provisions this House approved yesterday will apply to certain victims of trafficking, including the new criminal offences in relation to arrival in the UK and the discriminatory two-tier asylum system that many trafficking victims will now enter. If I correctly recall our debates in Committee, the offence we put into law yesterday of entering or arriving without permission could result in trafficking victims being excluded from protection.

In particular, I spoke yesterday about this place’s awful habit of passing legislation that tells decision makers how to assess the evidence that they will obviously have in front of them but which we do not have in front of us and that we will never know anything about. Instructing decision makers to make adverse credibility findings in relation to trafficking victims because the evidence or information was provided late is especially pernicious and dangerous. As Members on both sides of the House have pointed out, both today and on Second Reading, it takes time for many victims of modern slavery to identify themselves as a victim, let alone to present the evidence required to establish that fact. As we have heard, there are numerous reasons for that: fear of reprisals, shame, instructions or coaching from traffickers, the impact of trauma and mental health issues, as the right hon. Member for Kingston upon Hull North (Dame Diana Johnson) set out earlier. All the clauses that we debated yesterday requiring negative credibility findings to be made will impact on trafficking survivors who enter the asylum system, and clauses 57 and 58, which we are debating today, will impact on all who seek support as trafficking survivors.

As we argued in Committee, such a trafficking notice might serve a useful purpose if it was just that—a notice that information should be provided. Speaking from personal experience, it could focus the mind of solicitors who might be reasonably well practised in making claims on behalf of clients in relation to the refugee convention, or for immigration status, but who might have had significantly less experience of identifying and taking forward trafficking cases. I am sure lots of colleagues in the legal profession would identify with that.

In Committee, we argued to keep the notices but ditch the threat of sanctions. That approach was rejected by the Government, so we have tabled amendments 127 and 128, which would ditch the scheme altogether. In short, we cannot support a statutory scheme that threatens to punish trafficking victims for late provision of information. Most fundamentally, there can be no doubt that with such a scheme, there is a risk that survivors of trafficking who miss a mandatory deadline will simply withdraw from the whole process. The Bill requires that their credibility be treated as damaged, and all the talk of good reasons as an excuse will make a limited difference. In fact, the whole process risks becoming a vicious circle. I could provide evidence that was late because of the trauma of trafficking, but I would not be able to establish that I had been trafficked because my credibility would be damaged by providing that information late. That is a mess of a provision.

Going further, the scope of the provision is also bizarre, covering as it does not just statements made by the trafficking victim but statements made on their behalf. That could include evidence from their doctor, a counsellor or a social worker. Such reports should be considered on their own merits, not automatically discredited by utterly misguided provisions such as those we are discussing. A victim of trafficking could be in a position of needing to submit more evidence to strengthen their case, but by providing that evidence after a deadline set by the Home Office, they risk having their credibility damaged. They can be disbelieved either for providing not enough evidence, or for providing evidence late. What a Hobson’s choice that is for incredibly vulnerable people. The shadow Minister posed practical questions about the timing. We say, “Let’s take out the punishment through amendment 128,” or, at the very least, support the shadow Minister’s bid to disapply these dangerous provisions to children.

Our third amendment is 148, which probes the Government on the vague and broad provisions in clause 67 to disapply retained EU law deriving from the trafficking directive. In their modern slavery strategy of 2014, the then Conservative Government said that opting into that directive

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

and showed

“the UK’s commitment to tackling human trafficking and providing support to victims.”

The Government said that the directive

“paves the way for further engagement with EU-wide organisations and governments to share our prosecution and investigation expertise.”

Clause 67 disapplies that directive, in so far as it would be incompatible with the Bill and any subordinate legislation made under it. Given that the directive is so crucial to prevention, victim identification, protection and support, this proposal is concerning. We should be fully implementing the directive, not moving away from it.

Nothing is said about that provision in the equality impact assessment or the human rights memorandum, so we have no information about which parts of the directive the Home Office considers to be incompatible with this Bill, or which parts would cease to apply. How are anti-trafficking organisations and those who provide support and advice to survivors supposed to know what the law is? Can the Minister spell some of that out today? What other provisions of the directive might the Government want to ditch through subordinate legislation?

Before I address our last amendment, let me express support for amendment 3, which was tabled by the right hon. Member for Orkney and Shetland (Mr Carmichael), to remove the disqualification provisions of clause 62. As all Opposition Members argued in Committee, those provisions are far too wide. For the same reasons, we support the alternative new clause 39, in the name of the hon. Member for North East Bedfordshire, to secure compliance with the trafficking convention and protect children from disqualification. Rather than fixing the clause, the Government seem intent on making it worse through amendment 71, meaning that survivors who are identified as needing leave to remain to seek compensation, or to co-operate with investigations and prosecutions, will not get it.

We give our support to new clause 47, tabled by the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith), and in particular to the provisions requiring a grant of leave for 12 months, or longer if required because of personal circumstances.

[Tommy Sheppard (Edinburgh East) (SNP)]

My hon. Friend is making an excellent humanitarian case against aspects of the Bill. Does he agree that when the Government reject that argument, it will fuel the case for Scotland to become a politically independent country so that it can build a different immigration system on the basis of fairness and international solidarity, rather than prejudice and paranoia?

[Stuart C. McDonald]

I fully endorse what my hon. Friend says. We will continue to make the case against this Bill, although we all know that that case will be rejected. People who are watching will see our alternative proposals, and they are a strong argument for independence indeed.

In addition to saying yes to new clause 47, we support new clause 3 from the right hon. Member for Kingston upon Hull North. I mentioned at the start of my speech that Stormont, Westminster and Holyrood had all passed important legislation in this area, and that brings me to the key point that we have just touched on. Large parts of this issue are a devolved matter, and that is only partially recognised in the Bill. The same is true of the age assessment provisions in part 4. There are very good arguments for saying that legislative consent motions should be required from the Scottish Parliament for various provisions in parts 4 and 5, and that is why we have tabled amendment 129.

The whole disreputable scheme of trafficking notices, plus most law in relation to the recovery period, is surely within devolved competence, but clause 49 also sees the Secretary of State interfering in how local authorities go about discharging their duties in relation to devolved children’s legislation. I would be happy to share with the Minister a legal opinion by Christine O’Neill QC that has been published by the Scottish Refugee Council and JustRight Scotland, and that makes similar points. I am sure that devolved Administrations in Northern Ireland and Wales will also want to look closely at these points.

Our view is that this is a disaster of a Bill and, as the shadow Minister said, the whole legislative process leading up to it has been a disaster as well. The consequences for many vulnerable people will also be disastrous. That is as true of the provisions in relation to trafficking survivors as it is for asylum seekers and refugees. Although we have tried to ameliorate the worst aspects of the Bill, the whole rotten lot of it needs to be canned.