Motion A

Nationality and Borders Bill - Commons Amendments – in the House of Lords at 4:13 pm on 4th April 2022.

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Baroness Williams of Trafford:

Moved by Baroness Williams of Trafford

That this House do not insist on its Amendment 1, and do agree with the Commons in their Amendments 1A and 1B in lieu.

1A: Page 7, line 41, at end insert the following new Clause—“Provision for Chagos Islanders to acquire British NationalityIn Part 2 of the British Nationality Act 1981 (British overseas territories citizenship), after section 17G (as inserted by section 2), insert—“17H Acquisition by registration: descendants of those born in British Indian Ocean Territory(1) A person is entitled to be registered as a British overseas territories citizen on an application made under this section if—(a) they are a direct descendant of a person (“P”) who was a citizen of the United Kingdom and Colonies by virtue of P’s birth in the British Indian Ocean Territory or, prior to 8 November 1965, in those islands designated as the British Indian Ocean Territory on that date, and(b) they have never been a British overseas territories citizen or a British Dependent Territories citizen.(2) An application under this section must be made—(a) in the case of a person aged 18 years or over on the commencement date, before the end of the period of five years beginning with the commencement date; (b) in the case of a person aged under 18 on the commencement date, or a person who is born before the end of the period of five years beginning with the commencement date, before they reach the age of 23 years.(3) In subsection (2), “the commencement date” means the date on which this section comes into force.””

1B: Page 8, line 6, leave out “or 17F” and insert “, 17F or 17H”

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

My Lords, with the leave of the House, I will also speak to Motions B, L, M, T and U.

This is a happy time of the day. I want to return to Lords Amendment 1, which provides for the Chagossians to acquire British citizenship and British Overseas Territories citizenship. We heard some very powerful speeches advocating on behalf of the Chagossians, both in your Lordships’ House and in the other place. I was deeply moved on meeting one of the Chagossians with the noble Baroness, Lady Ludford. The Government accept that the unique position of the Chagossians means that we can accept a unique solution to provide them and their descendants with a pathway to British nationality. For technical reasons we have been unable to accept the amendment agreed by your Lordships’ House. However, we have tabled, and the other place has accepted, two technically correct amendments in lieu, Amendments 1A and 1B. I hope that these amendments will now also be accepted by your Lordships’ House.

Amendment 4 relates to the deprivation of citizenship. On Report, your Lordships’ House did two things in respect of the clause in question. The first was to agree to amendments to it that were tabled by the noble Lord, Lord Anderson of Ipswich. I thank him for bringing his considerable experience and legal expertise to bear on this very important issue, and for tabling amendments that met with the favour of the House. However, your Lordships also deleted the substantive clause, as amended by the noble Lord, from the Bill.

The Government have now accepted the amendments tabled by the noble Lord, Lord Anderson, and re-tabled the substantive clause, as amended by him, in the other place, which agreed to it. I strongly invite your Lordships’ House to support this course of action by not insisting on Amendment 4, which would delete the substantive clause, and by agreeing to Amendments 4A to 4F, which will restore to the Bill the clause as amended by the noble Lord, Lord Anderson.

The noble Baroness, Lady D’Souza, has moved that subsections (5) to (7) be omitted from this clause, which, of course, in the context makes no sense. These subsections relate to existing “without notice” deprivation orders and ensure that they continue to be valid. Omitting these subsections would cast doubt on the validity of these orders and create an unacceptable risk to our security. I therefore invite the noble Baroness to withdraw this amendment.

Amendments 13 to 19 relate to the offence of illegal arrival in the UK, a key element of the Bill. We want to do everything we can to deter people from making dangerous and, sadly, as we have seen, often fatal journeys. That is why we want to change the law to provide prosecutors with additional flexibility when someone has “arrived in” but not technically “entered” the UK. Your Lordships’ amendments would remove this flexibility. The other place has therefore disagreed to these amendments for their reasons 13A to 19A. There is a need to seek prosecutions when there are aggravating circumstances, and where prosecutors agree that this is in the public interest. However, the list cannot be exhaustive, as we need to be able to respond to unforeseen circumstances. I will set out in more detail what the Government mean when we say that we are seeking prosecutions only in the most egregious cases for this offence.

We will take firm action against migrants who put themselves or others, including rescuers, in danger by their actions—for example, where migrants have been seen dangling children over the side of a boat and threatening to drop them into the channel, or dousing themselves in fuel to prevent them being picked up by French search and rescue services because they did not want to be taken back to France. This would apply to instances such as those which occurred in 2020 with the stowaways on the “Nave Andromeda”, which led to the crew locking themselves in the ship’s citadel in accordance with the ship’s safety manual and making a mayday call.

Additionally, we will be targeting for prosecution migrants who cause severe disruption to services such as shipping routes, or closure of the Channel Tunnel. This happened in 2015 when a group of migrants forced their way into the tunnel despite the attempts of French officials and police to prevent them doing so. The migrants’ actions meant that the power supply to the tunnel had to be shut down and rail traffic suspended.

We will also focus on those who have arrived in the UK without permission in cases where they are criminals who have previously been deported from the UK, persons subject to exclusion decisions or persons who have been repeatedly removed as failed asylum seekers. On this basis, your Lordships’ House should not insist on these amendments.

The noble Lord, Lord Coaker, has tabled Amendment 13B in lieu of Amendment 13, which would make it an offence for persons to knowingly arrive in the UK in breach of a deportation order. Although I welcome the recognition that we need to be able to prosecute criminals who seek to evade immigration controls and return to the UK, we cannot accept this amendment, as it is just too narrow. It would not, for example, allow for the prosecution of someone attempting to arrive in the UK who has previously been excluded from the UK on national security grounds. As I have just set out, there are a number of other aggravating behaviours for which we think prosecutions would be appropriate. I therefore hope that the noble Lord will not press his amendment.

Amendment 20 would reinsert the requirement to prove that a person is acting “for gain” if they are being prosecuted for facilitating the entry of an asylum seeker into the UK. I emphasise that this Government do not prevent and have no intention of preventing humanitarian rescues from taking place, and we have built additional safeguards to this effect into the Bill. But the problem here is that proving that someone acted “for gain” is practically very difficult. It means that prosecutors are limited in the action that they can take against people smugglers. The other place has therefore disagreed with this amendment for their Reason 20A. On that basis, I put it to noble Lords that we should not accept this amendment.

The noble Lord, Lord Paddick, has tabled Amendment 20B, in which he proposes that, instead of reinserting the requirement that a person is acting “for gain”, it should be an offence to act “without reasonable excuse”. We have already set out in detail in the Bill how this offence will work, including statutory defences that would effectively provide reasonable excuses, so we do not think that this amendment is necessary.

Amendment 40 concerns the operation of the electronic travel authorisation—ETA—scheme when

“the individual is travelling to Northern Ireland on a local journey from the Republic of Ireland.”

The other place disagreed with this amendment for its Reason 40A. The amendment could result in an unacceptable gap in UK border security, which would allow persons of interest or risk who would otherwise be refused an ETA to enter the UK legally. It would undermine the very purpose of the ETA scheme, which is to prevent the travel of those who pose a threat to the UK.

Although I understand the sensitivities engaged here, I reassure noble Lords that the Government stress our continuing commitment to the Belfast agreement, as well as the common travel area. An important part of this is our absolute commitment not to have any checks at the Ireland-Northern Ireland border, and British and Irish citizens will not be required to obtain an ETA. Neither will those who already have an immigration status in the UK—for example, those with a frontier worker permit. However, as now, all individuals—except British and Irish citizens—arriving in the UK, including those crossing the land border into Northern Ireland, need to continue to enter, in line with the UK’s immigration framework. This is a well-established principle of the operation of the CTA, and it applies when travelling in all directions. We are simply extending the principle to individuals requiring an ETA.

For those who require an ETA, the process of applying for one will be quick and light-touch. It will be valid for multiple trips over an extended period, so that this is not disruptive to lives or livelihoods, minimising the burden on those making frequent trips, including across the Ireland-Northern Ireland border, while protecting the common travel area from abuse as far as possible.

On the possible impacts on tourism, I assure the House that the Government are committed to working with a wide range of stakeholders, including Tourism Ireland and Tourism Northern Ireland. This will ensure that the ETA requirement is communicated effectively through targeted messaging and a variety of channels. It will also mitigate any risk of increased barriers to cross-border tourism on the island of Ireland. I therefore ask that this House does not insist on this amendment.

The noble Lord, Lord Murphy of Torfaen, has proposed a further, well-considered amendment, which would exempt residents of the Republic of Ireland. The relationship between the UK and Ireland is an important and unique one, and we are deeply committed to the strongest and closest possible partnership between us. We remain committed to ongoing communication with the Irish Government and other interested stakeholders to navigate their concerns on this matter. I therefore ask that your Lordships’ House does not insist on this amendment.

Finally, Amendment 54 prohibits the use of new maritime powers contained in the part of the schedule to which it applies from being used

“in a manner or in circumstances that could endanger life at sea.”

Noble Lords will know that the Government’s priority is to save and preserve life at sea. Our position has not changed, and as such, as the Government have made clear before, we do not think that we need to put these commitments into the Bill. The other place has disagreed with this amendment for its Reason 54A. I conclude by asking that noble Lords do not insist on this amendment, and I beg to move.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

My Lords, on Motion A, I am very pleased to be able to accept Amendments 1A and 1B in lieu of my original amendment. Together with assurances given on the record in the Commons, they will open up entitlement to British citizenship, which will be subject to neither a fee nor a good character test. They therefore meet the objectives of the original amendment. I thank the Minister for whatever part she may have played in helping achieve this change of heart, following the meetings she had with some of us and Rosy Leveque of BIOT Citizens.

I have two questions. When is it anticipated that applications can begin, and can the Minister confirm that it is still the Government’s intention to use some of the largely unspent £40 million Chagos support fund to help Chagossians settle here, and to help those already here who have welfare needs?

As well as the Government, I thank noble Lords from all Benches who gave such strong support to the amendment, and in particular those on the Government Benches, as I am sure their passionate support was key to encouraging the Government to think again. I thank the APPG on the Chagos Islands for helping to build that support. I also pay tribute to Henry Smith MP, who has long championed this cause in the Commons, and to the late and much-missed Lord Avebury, who first raised the issue in your Lordships’ House over a decade ago. His work to remove this and other citizenship injustices has been energetically continued by the BOT Citizenship campaign, especially David Varney and Trent L Miller.

Last but not least, I pay tribute to the Chagossians themselves, who have helped to spearhead the campaign, in particular Rosy Leveque and Chagossian Voices. The joy felt as a result of the government concession is summed up well in an email sent to me and Henry Smith from a Chagossian on Mauritius, who is longing to be reunited with his family in the UK. I will quote briefly a few lines:

“I am writing to you simply to say that words are not enough to express how thankful and grateful I am. I can’t stop crying with joy and happiness, and trust me when I say that many Chagossians in Mauritius and Seychelles are also overjoyed and overwhelmed by this result. Many of us have been keeping our grandparents’ birth certificates in a folder waiting for this day to come.”

The original injustice that deprived the Chagossians of their homeland and that perpetuates their exile remains and will rightly continue to be contested. However, I believe that all those who have contributed to the ending of the citizenship injustice done to the descendants of those for whom the Chagos Islands were home can feel pride today. I am sure that we all look forward to welcoming to the UK as British citizens the Chagossians who have been the victims of this injustice.

Photo of Lord Horam Lord Horam Conservative

I thank the noble Baroness, Lady Lister, for her leadership on this issue, the noble Baroness, Lady Whitaker, who has pursued this for many years, and Henry Smith in the other place, who has played a notable part as well. Indeed, I also thank my noble friend the Minister and the Government, who have pursued this and given way on quite an important principle and made a unique situation for the Chagossians in this country. I now hope that the Foreign Office takes the cue from the Home Office and deals with the real problem, which is giving the Chagos Islands back to Mauritius—that is the real issue. We only got four votes in the United Nations on this issue—with 150-odd against us. It is a lasting disgrace, and I hope that the Foreign Office, which is not normally behind the Home Office on these issues, takes the cue accordingly.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, I take the rare step of agreeing completely with the noble Lord, Lord Horam, particularly in his praise for the noble Baroness, Lady Lister, who has worked so incredibly hard and has been so effective, as well as the Minister, who clearly smoothed the way for these changes. I will ask one question. One difference in the Commons amendment is that it does not state:

“No charge or fee may be imposed for registration under this section.”

So can the Minister tell me what fees or costs will be imposed on Chagos Islanders to rectify this injustice?

Photo of Baroness D'Souza Baroness D'Souza Crossbench 4:30 pm, 4th April 2022

My Lords, my Motion B1 also falls in this group. I start by saying how welcome the safeguarding concessions that have been or will be incorporated into the Bill are. But there is still unfinished business. Very simply, my Motion seeks to delete the retained subsections (5) to (7) on the grounds that these clauses maintain a legal fiction that deprivation orders issued without notice continue to be valid, despite court rulings to the contrary. It is accepted by the courts that it is unjust to strip a person of his or her citizenship and all the associated rights without ever providing notice. Retaining subsections (5) to (7) seeks to overturn that ruling by legislative fiat. Instead of invalidating previous deprivation orders that were made unlawfully, the Government appear to wish to apply retrospectively these earlier orders.

The Minister, who was kind enough to write to me at an earlier stage of the Bill, justified these orders by pointing out that the proper functioning of the immigration system cannot be hijacked because an individual chooses to remove himself or herself from contact—or where to make contact might reveal sensitive intelligence. The Minister said that we cannot be in a position where we can never deprive someone of citizenship simply because it is impractical. Since then, the Government have accepted in principle amendments tabled by the noble Lord, Lord Anderson, which the Government assert achieve the right balance between safeguards and security.

I respectfully suggest that this is not what my amendment is about; rather, it is about holding to decisions and actions on orders to deprive citizenship without notice that have subsequently been declared unlawful. Thus the safeguards now included, or to be included, in the Bill will not affect deprivation orders made before commencement. This appears to be unjust. It is also puzzling. If the Government accept that safeguards are necessary, why not apply them to all deprivation orders? Section 40 of the British Nationality Act 1981 sets out individuals’ statutory right to be notified when being deprived of citizenship. The Government’s disregard for this right led to legal rulings, including from the Court of Appeal. Therefore, the retention of subsections (5) to (7), which we are discussing today, could be seen as bringing the rule of law into question. It most certainly creates two tiers of citizens subject to deprivation orders: those who benefit from the so-called Anderson safeguards and those who do not—namely, those still under pre-commencement orders.

I am not arguing, and have never argued, against deprivation orders, which may be acutely necessary. Process is the issue. Excluding the subsections in my amendments would not deny the Government the right to reconsider their earlier decisions together, in some cases, with the benefit of new evidence, particularly that which involves evidence of human trafficking, and to remake deprivation orders where necessary.

Removal of subsections (5) to (7) would immediately achieve two desirable and extremely important outcomes: it would bring the Government into conformity with the rule of law and it would extend proper safeguards to those who continue to be at risk from previous unlawful actions.

Photo of Lord Murphy of Torfaen Lord Murphy of Torfaen Labour

My Lords, I shall speak to my Motion T1, which refers to the electronic travel authorisations to which the Minister referred. The amendment would make anyone who was legally resident in the Republic of Ireland able to travel to Northern Ireland without such an ETA. This issue was discussed both in Committee and on Report. The House agreed with those of us who argued that this was wrong, but of course the House of Commons has not. The arguments remain the same. I was hopeful that the Minister, who I am sure will have spoken to her colleagues at the Northern Ireland Office, would make some concessions on this matter. However, the dead hand of the Home Office is there again.

This troubles me for a number of reasons. First, it jeopardises strand 2 of the Good Friday agreement, which refers to north/south co-operation between the two parts of the island, which was vital when the agreement was negotiated. It affects tourism, as the Minister referred to. She said that tourism was a good thing. We all agree with that, as do all the stakeholders, but the Government have to do something to ensure that it remains a good thing. If we charge €14 for an ETA—with the bulk of American tourists, for example, coming from Dublin to go to the north of Ireland to enjoy the great pleasures of tourism there—that is going to be a question of jeopardy as well.

In addition to that, and perhaps more significantly for those who live in both the north and the south of the island, there is the issue of health. Many people in Northern Ireland and in the Republic travel the border to go to the best place for the particular ailment or disease from which they are suffering. Particularly up in the north-west of Ireland, the co-operation between the two Governments is immense. I would be troubled if someone who was not necessarily an Irish or British citizen but was legally resident in the Republic was not able to take advantage of those co-operation decisions by both Governments.

The other issue here is work. It is quite possible that someone could work in the Republic and live in the north, or vice versa, who was not an Irish or British citizen but was legally in the Republic because of their membership of the European Union .

Secondly, there is an issue with regard to the spirit of the Good Friday agreement, which in my view has been jeopardised by this government decision. The border is different in Ireland; it is not like any other border in the European Union. Although I do not normally read tweets, I read one the other day from the noble Lord, Lord Frost, who had got worked up about this issue and was talking about the fact that the Irish Government did not seem to think this was an international border between two countries. What does he think we were doing for year after year when we negotiated the Good Friday agreement and the St Andrews agreement? We were dealing with the border as part of the peace process. There are 300 crossings along that border with no apparatus to check people, yet now we get a completely different way in which people must apply to the bureaucrats in order to cross it.

The border is a great symbol on both sides of the community in Northern Ireland, which is why the border being put down east/west has caused such a fuss. But the reason why this proposal by the Government is simply daft is that it is unenforceable. The Minister has told us what the Marshalled List states and says the reason why these ETAs are essential is to stop people of interest or people who are risky, whether they be spies, terrorists, criminals or other ne’er-do-wells, from crossing the border. Does she really think that those people are likely to pay €14, fill in an ETA form and then cross the border? Of course not. It is nonsense because it cannot be enforced. If the border had apparatus at all 300 crossings then that might be possible, but it does not.

Some of your Lordships who are as old as me will remember Gilbert Harding. He once had to fill in a form to apply for a visa to go to America, and on the visa form was the question: “Is it your intention to undermine the Government of the United States?” His answer was “Sole purpose of my journey”. That is in a way similar to this. At the end of the day, it is unenforceable, impractical and unnecessary, and it jeopardises the relationship between two countries. Ireland and the United Kingdom are the joint guarantors in international law with regard to the Good Friday agreement. The noble Baroness knows that the Irish Government are very upset about this for all sorts of reasons; there have been discussions between Ministers even at the British-Irish Intergovernmental Conference, set up by the Good Friday agreement. Is it really worth jeopardising our relationship—which has been bad enough as it is over the last number of years—with this petty and silly proposal by the Government? I would like the Government to change their mind, but I am not hopeful.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, I have Motion M1, Amendment 20B, in this group but I will speak to the other Motions in order so that I speak only once.

As we have heard, this group deals with Chagos Islanders, stripping a person of their citizenship without notice, criminalising anyone arriving in the UK who claims asylum other than through a safe and legal route, criminalising those who rescue migrants from the sea, electronic travel authorisations in relation to the border on the island of Ireland and pushbacks in the Channel. We support Motion A in relation to the Chagos Islanders, but we are disappointed that, as the noble Baroness, Lady Jones of Moulsecoomb, has said, a fee will still be charged before their right to British Overseas Territories citizenship or British Dependent Territories citizenship is officially recognised. Is that wrong?

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

I thought I had said it, but in the Commons, it is on the record that no fee will be charged, nor will there be a character test. It will be done through the fees order; that is why it is not in the Bill.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

I am grateful to the noble Baroness. It is a shame that it is not in the Bill but, if that undertaking has been given, we can perhaps trust the Government on this occasion.

We are pleased that the Government have adopted the safeguards proposed by the noble Lord, Lord Anderson of Ipswich, before someone can be deprived of British citizenship without notice; we believe this will reverse the recent increase in the number of cases and, hopefully, reduce it to almost zero. We agree with Motion B1, Amendment 4G, in the name of the noble Baroness, Lady D’Souza, to remove the validation of previous deprivations of citizenship without notice, which the courts have held to be unlawful. As the Government acknowledge, the “Anderson safeguards” are necessary, so the Home Office should go back over existing cases of deprivation of citizenship without notice, applying these safeguards to ensure that they are lawful.

We agree with Motion L1 in the name of the noble Lord, Lord Coaker, as a mechanism for preventing those arriving in but not entering the UK, and then claiming asylum, from being criminalised. For the Government to say that only egregious cases would be prosecuted is not sufficient, as the fact that arriving in the UK and then claiming asylum could be a criminal offence would have a chilling effect on those legitimately seeking refuge in the UK; this is, of course, exactly what the Government intend by their Motion L.

I ask the House to support my Motion M1. The Government want to criminalise those who facilitate those entering the UK without the correct prior authority, even if those doing so are not people smugglers and not acting for their own gain. The perhaps unintended consequence is that those rescuing drowning migrants in the English Channel, for example, commit an offence unless the rescue is co-ordinated by HM Coastguard or an equivalent organisation. The Government propose a defence, once charged, if the rescuers are genuine good Samaritans, and again claim that only the most egregious cases would be prosecuted. This, again, is not sufficient, as it could have a chilling effect on would-be rescuers who knew that they would be committing an offence if they attempted rescue without prior coastguard authority were the House to agree with Motion M. How many might drown before the rescuers were able to contact HM Coastguard and enable them to co-ordinate the rescue?

Instead of a defence once charged, Motion M1 proposes that the offence is committed only if a person facilitates entry to the UK without reasonable excuse. Rescuers would then know that, provided they are acting in good faith, they would not be prosecuted, but people smugglers would not have a reasonable excuse and could be prosecuted. The Government’s suggestion that people smugglers might pretend to be genuine rescuers is, quite frankly, ridiculous, as there are likely to be many witnesses, in the form of the migrants who have paid large sums to the people smugglers, that this is not the case.

My noble friend Lady Suttie will deal with Motions T and T1. Finally, on Motion U, we find the Government’s reasoning bizarre. Pushing back flimsy dinghies in the English Channel will of course put lives at risk. I am pleased that the Lords Minister for the Ministry of Defence and the staff association representing Border Force officers have both suggested that neither the Royal Navy nor Border Force will engage in such tactics. On the one hand, the Government want to give personnel engaged in such tactics immunity from criminal and civil liability, but at the same time, they will have to be exercised in compliance with the European Convention on Human Rights and with the UK’s international obligations, in which case, no criminal or civil liability would arise. No matter what the Home Office thinks it will achieve by Motion U, we are satisfied that no one in their right mind would push back a boat full of migrants in the Channel, so we will not object to it.

Photo of Baroness Ritchie of Downpatrick Baroness Ritchie of Downpatrick Non-affiliated 4:45 pm, 4th April 2022

My Lords, I support Motion T1 in the name of my noble friend Lord Murphy of Torfaen. As has already been explained, this amendment, in previous guises, was discussed in Committee and on Report. On those occasions, your Lordships’ House considered it a valuable amendment and that the Government, via the Ministers in the Home Office, working with the Northern Ireland Office, should see that this electronic travel authorisation does not take place. I have talked to many people and, as my noble friend has said, the requirement is unworkable and daft. I wish to give practical examples of that. It is also unenforceable. It would violate the very premise of reconciliation and bringing people together on the island of Ireland in terms of the Good Friday agreement. It would jeopardise important parts of strand 2, the north-south requirements. All this, in many ways, is simply a consequence of Brexit.

Our amendment says that those who are legally resident in the Republic of Ireland who have come from EU and other countries in the last year or so should be exempt from requiring an electronic travel authorisation if they wish to travel from the Republic of Ireland to Northern Ireland.

From a practical point of view, I have asked the Minister to consider the geography, because I believe the Home Office has not fully considered that. Let us take the county borders of Donegal and Tyrone, Donegal and Derry, and Donegal and Fermanagh. There is one village that straddles Donegal and Fermanagh, the small village of Pettigo. That border goes straight down the middle of it. One minute you could be in the Republic of Ireland and the next you could be in Northern Ireland. There is the case of Lifford in County Donegal and Strabane. There is a direct, symbiotic relationship between those towns, as they exist cheek by jowl. You can walk over the bridge from one to the other. The symbiotic friend of Belcoo in County Fermanagh is Blacklion in County Cavan. They exist cheek by jowl. In terms of the geography we are talking about, this proposal from the Government is unworkable and unenforceable.

I ask the Minister—and I say this to the Government in the most sincere terms—to please continue direct negotiations on the issue with the Irish Government, who are deeply fearful of the repercussions of this proposal for an electronic travel authorisation. They believe that it is unworkable and that it will impede tourism—an issue I am sure that other noble Lords will deal with. In that respect, the Minister referred to work with Tourism Ireland and Tourism Northern Ireland. I ask the Minister: what discussions took place with those bodies and what were the results of those discussions?

Apart from, I feel, being in breach of strand 2 of the Good Friday Agreement—and in breach of natural common sense—I say that a proposal for an ETA is not only inconvenient but disruptive, unworkable and unenforceable. Can the Minister tell us when the Government envisage introducing the secondary regulations in relation to the charging? I firmly believe that these are not required. I urge the Government to accept our reasonable amendment, which states that if the individual is legally resident in the Republic of Ireland, that should act as a reasonable exemption.

Photo of Viscount Brookeborough Viscount Brookeborough Crossbench

My Lords, I rise to support Motion T1 in the name of the noble Lord, Lord Murphy. Because this is something which has been brought in, one must look at what the current situation is. The current situation is that it is an open border, and we have heard that there will be no one on it. Even before Brexit, the situation was that we had border officers at the airports and ports because of terrorism, drugs, human trafficking and whatever else. Those people are still there—so, in effect, what is this ETA actually going change? It is not going to put anyone on the border. We have already heard about people working either side of the border.

I declare interests in running a small tourism operation and because my brother is chairman of Tourism Ireland. I have not discussed this matter with him. He is perfectly aware of my feelings on it. However, the Minister rather brushed over consulting Tourism Ireland, Tourism Northern Ireland and the Government of Ireland—as if these discussions were going well. I have not spoken directly to people involved but it is my impression that these discussions are not going well. These two organisations and the Government of Ireland are entirely against this. They are against this in relation to the movement of people day by day doing everyday things. They are also against it from a tourism point of view.

A couple of years ago, the Government accepted that the passenger duty for airline passengers was an inhibiting factor, preventing airlines travelling to Northern Ireland because it was less in Dublin. They obviously accepted that it was an inhibiting factor because they dropped it and made it roughly equal—this was largely for tourists. So what are they proposing now? Putting on more than half of it to any tourist who wants to enter Northern Ireland. I ask the Minister for her honest opinion: if a £13 or £14 passenger duty inhibited people arriving in Northern Ireland, what is half of that—£6.50, plus apparently £10 or £12—going to do? Does she see this as an encouragement, or as something which will inhibit people coming north?

The Minister says that interested parties will be told—which must include travel agents and so on—in order to get people to put in for this. What will happen when somebody decides to come to Ireland as an island, and their travel agent says they will have to fill in an electronic form and pay extra money to go north, even if they want to come for a few hours? This is why I like the first amendment—because it talks about short periods of time. Noble Lords may not necessarily think that Northern Ireland is a holiday destination, but I can assure them that a lot of people do. In particular, the Titanic exhibition was voted the world’s leading tourist attraction a few years ago.

Those who have watched “Game of Thrones”—and I have not—will know that the world was hooked. Warner Brothers has invested millions of pounds in what is going to be an iconic visiting centre for “Game of Thrones” in Northern Ireland, and it is not all that far from the border. But what is going to happen? What does the Minister really think tourists are going to feel when they come to the island of Ireland and find a barrier? Some of us are pretty bad with IT anyway, and it is already difficult enough to do the filling in. Additionally, if this form is as light a touch as the Minister says, what possible checking can there be in it? Anybody can fill it in anyway. It is crazy to think that that will stop anyone.

We were talking just now about crossing the border; I will stop after this. Not only are Belcoo and Blacklion on opposite sides of the bridge, but we have in Fermanagh something that noble Lords probably do not know about: Concession Road, which runs between two Republic towns, Cavan and Clones, into the north and then back into the south. That is fact. If you had been on patrol at night during the Troubles, you would have known all about it. It caused immense problems, because Garda patrols were not allowed up that bit of road; we were allowed up it, but we had to cross a bog to get to it. The police could not get to it, because they did not particularly like bogs; they liked nice carts and whatever.

This is really unbelievable. The duty of government, surely, is to make laws not for filling pages of A4 but for something that can be implemented. Surely, it is a duty of government not to make laws that are entirely unenforceable.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green

My Lords, I rise extremely briefly, my noble friend having done the praising the Government part, to offer Green support to the other, non-government amendments in this group. We have heard very powerful practical examples on Motion T1. On Motion M1, the argument that someone acting in good faith should not face a court case, particularly in a life or death matter, is obvious.

I will focus briefly on Motion B1 on the deprivation of citizenship. Commons amendments have tightened the conditions under which citizenship can be removed without notice and improved the judicial oversight. The noble Baroness, Lady D’Souza, is seeking to do that further with this. She said she was not against the principle of deprivation orders so I must lay out, very simply and clearly, that the Green Party is totally against the deprivation of the right of citizenship; citizenship should be a right that, once granted, remains. I must declare an interest here, because I am one of over six million people who are potentially affected by this deprivation of the citizenship right because, as anyone who hears me speak will know, I hold another citizenship. Many other people feel like second-class citizens in their own country, because they are; that right can be taken away as it cannot be from other people. All I can do is apologise to all those people that we have failed to get a parliamentary consensus for this and say we are going to keep trying.

Photo of Baroness Suttie Baroness Suttie Liberal Democrat Lords Spokesperson (Northern Ireland)

My Lords, I shall speak briefly in favour of Motion T1 by the noble Lord, Lord Murphy, which proposes Amendment 40B in lieu. I will be very brief because there have been so many brilliant speeches from the noble Baroness, Lady Ritchie, the noble Viscount, Lord Brookeborough, and, of course, the noble Lord, Lord Murphy. I do not understand why the Government have not shown more willingness to concede on this matter. At every stage of the Bill so far, they have failed to provide convincing evidence that introducing these proposals will be workable or enforceable in practice, especially given the particularly sensitive circumstances on the land border on the island of Ireland.

There is clear evidence that the Government’s plans for an ETA will have a negative impact on the Northern Ireland economy, including on tourism. Will the Minister say a little more about whether the Government carried out an impact assessment on the effect on the Northern Ireland economy and tourism? I have asked this question at every stage of the Bill so far and I have not had an answer. I urge the Minister to listen to the many noble Lords this afternoon who have so much personal and practical experience and to reconsider, withdraw these proposals and accept this amendment.

Photo of Lord Dodds of Duncairn Lord Dodds of Duncairn DUP 5:00 pm, 4th April 2022

I shall speak briefly on Motion T1. It was a pleasure to listen to the noble Lords who have spoken to this important matter. One thing we all agree on is that there should be no checks or barriers along the border between Northern Ireland and the Irish Republic, and certainly there should be no barriers between Northern Ireland and the rest of the United Kingdom. That is an equal assertion. Unfortunately, those of us from a unionist position sometimes feel that the concentration is very much on the north-south dimension and that the east-west dimension is almost forgotten or people call for the rigorous implementation of checks, which is a bizarre position to adopt when there has been so much passion. I agree with those who have argued that there should be no checks between Northern Ireland and the Irish Republic and vice versa.

As someone who lives just about 15 miles from the border, I understand the concerns. However, there are a couple of myths that need to be dispelled. First, we are talking about an international border between Northern Ireland and the Irish Republic and between the United Kingdom and the Irish Republic. It is a different jurisdiction for currency, taxation and fiscal rules. For goodness’ sake, even the road signs change from kilometres to miles. We have different voting systems. All these things matter, and it is wrong to dismiss the guarantees and agreements that were made in the Belfast agreement, as amended by the St Andrews agreement, because it enshrined the principle of consent and that the people of Northern Ireland should remain part of the United Kingdom so long as they voted that way.

The second thing to say gently to the House is that there were checks for immigration on the UK side and on the Irish Republic side of the border—not at the border because nobody wants to stay at the border—even before we left the European Union. I am looking at a tweet put out by the Garda and PSNI in 2018, which eulogises and praises a checkpoint near the Monaghan/Armagh border seeking those in breach of immigration law. There are many other examples we could give. Eight illegal immigrants were caught at a checkpoint in Dundalk just across the Irish border by the Garda Síochána after travelling via England and Northern Ireland. These checks are not done at the border but they are intelligence-led, so it is wrong to suggest that somehow any checks are contrary to the spirit of the Belfast agreement because that is exactly the sort of regime that will apply going forward as it did previously.

The final thing I will say, very briefly, is that—as I mentioned at the start—we must have the same considerations and the same passion and desire to avoid problems against the spirit of the Belfast agreement which has been evoked today and we must ensure that it applies east-west for strand 3 as it does for strand 2. In June 2021, the European Union, as published by the DAERA department in January of this year, was complaining to the UK Government that ferry passengers coming from Great Britain into Larne or Belfast, where there is no border at all—British citizens moving from one part of the United Kingdom to the other—were not having their luggage checked. If anything illustrated the detriment to tourism, for instance, which has been mentioned in this regard, there is an example.

Issues have been raised about people getting access to health and the protocol’s effect on medicines for UK citizens and Irish citizens coming from one part of the United Kingdom to the other. There are barriers to that, yet we do not hear the same concerns. All I am pleading for is balance and equivalence. If checks are wrong north-south, they are wrong east-west.

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords)

My Lords, I speak to Motion L1 in my name and, briefly, to some of the other amendments before us. I congratulate the Government on Motion A and welcome the movement from them with respect to the Chagossian community—the Minister deserves credit for persuading the Government to move on that, as does my noble friend Lady Lister and many others for the campaign to advance this cause and issue. The noble Lord, Lord Horam, was right also to point out the efforts of Henry Smith MP who has worked exceedingly hard on this issue.

There will be a number of disagreements between us as we debate this Bill today, as well as many challenges to the Government and pushback—if that is the right phrase to use in the context of this Bill—asking the Government to think again. It shows the importance of how the Lords works to ask the Government to revise their legislation. This is an example of where the Government have responded positively to the various concerns that have been expressed. This shows Parliament at its best and, hopefully, with respect to other issues that I and other noble Lords will raise through our amendments, we will see the same happen elsewhere before the Bill becomes an Act.

On Motions B and B1, the deprivation of citizenship in certain cases, with proper safeguards, is an important tool of our national security. We do not believe that the Government have made the case for the suggested powers under Clause 9 to remove citizenship without giving notice. It remains our preference that the clause should be removed altogether; however, it is clear the debate has moved on from this. In that light, we strongly welcome that there has at least been some movement to introduce safeguards. I pay tribute to the noble Lord, Lord Anderson, whose work has improved the clause and has added much-needed safeguards into the process.

However, Motion B1 from the noble Baroness, Lady D’Souza, raises further extremely important questions about Clause 9. I ask again: is it not the case that the Government must reissue existing deprivation orders that were made without notice under the processes now defined by—what I would call—the Anderson amendments? If a person is currently subject to a deprivation order but they have not been notified of that, when do their appeal rights start and finish? Can the Minister provide clarity on this? There are a number of questions and the noble Baroness, Lady D’Souza, is quite right to point out through her Motion the various problems that still exist, notwithstanding the improvements that have been made. I will be interested to hear the Minister’s response to the noble Baroness with respect to her Motion B1.

On Motion L and my Motion L1, the proposed arrival offence makes arriving in the UK to seek asylum a criminal act. We feel really strongly about this, as indeed your Lordships did. The Commons reason for disagreeing with the Lords over this offence is that

“the Commons consider that it should be a criminal offence for a person who requires entry clearance to knowingly arrive in the United Kingdom without such clearance.”

But do the Government genuinely believe that a person arriving in the UK and asking for sanctuary is a criminal act? That is what is suggested by this offence. At the same time, Ministers have repeatedly stated that they do not intend it to be used in all circumstances to which it applies.

A specific example of what we are talking about came up last week in the debate in the other place when considering a Ukrainian who had fled to the UK to join their family in the first few days after the appalling Russian invasion to escape the bombing and destruction of their home, but who had not completed a lengthy visa process. Under the Government’s proposals, that Ukrainian person would have been guilty of a criminal offence and liable to up to four years in prison. That is surely not what the Government want, but that would be the consequence of their Bill as drafted. Therefore, although that is a very emotive example to give because we all feel so passionately about that, that is exactly what the Bill does. That cannot be right.

The Government say that we need to ensure that there are safe and legal routes, and much of this has been driven by what has happened with respect to migrants crossing the channel. As Damian Green MP, a former Immigration Minister, asked of the Government,

Home Office data confirms that 87% of those arriving by small boats in 2021 comprised nationals from Iran, Iraq, Syria and Yemen,”—[Official Report, Commons; 22/3/22; col. 199.] but what safe route is open to them? I know the Government’s answer is that they should stop in the first country in which it is safe for them to do so, but if 87% are from those four countries—as the Home Office data itself says—what difference does the criminalisation of the offence of arrival make? The Bill does not make sense in this regard.

Throughout the passage of the Bill, as I say, Ministers have repeatedly said that this offence is intended to be prosecuted only in specific cases, such as where a person arrives in the UK in breach of a deportation order. If the Government’s intention is for those cases to be prosecuted, they should pass a law which says that. That is why we have tabled our amendment in lieu: to do just that. We have listened to Ministers and what they are seeking to achieve and have actually tried to find a way through. So, our Amendment 13B would provide a specific offence of arriving in the UK in breach of a deportation order. It is an example of the type of specific offence that Ministers can put into the Bill to achieve their desired outcomes. The Commons reason regarding the offence as drafted does not reflect the assurances or the policy intent expressed to both Houses by Ministers. For that reason, we believe that further action is needed on the issue—hence my Motion L1.

On Motions M and M1, the Government have ended up in a position where a person who saves lives at sea without co-ordination of that rescue attempt by the coastguard risks committing an offence. The Government’s answer is that a rescuer in that situation will have a full defence that they have gone to the aid of people in distress, which they are duty bound to do under international law. I accept that the change is not intended to lead to the prosecution of anyone who rescues lives at sea, and we recognise that the Government have moved some way during consideration of the Bill to put beyond doubt that a coastguard co-ordinated rescue is not in the scope of the offence. But we are still left with an unsatisfactory outcome and a lack of clarity on what should be included in the scope of the offence. We have this problem throughout the Bill, and this is yet another example of an offence capturing behaviour that should not be captured. The Bill does not clarify the position and the Government so far refuse in many instances to give us the clarity we need.

Turning to Amendment 20, tabled by my noble friend Lord Rosser, regrettably, we do not believe that there is more to be gained by insisting on sending it back to the Commons a further time. But the Motion tabled by the noble Lord, Lord Paddick, perfectly highlights the remaining issue and would be a simple and sensible addition to the Bill. We support it, and we ask the Minister to consider it seriously.

On Motions T and T1, spoken to by my noble friend Lord Murphy and supported by the noble Baroness, Lady Ritchie, and the noble Viscount, Lord Brookeborough, there is a real problem here, notwithstanding the important points made by the noble Lord, Lord Dodds. We have been raising this issue for months; the border is still an afterthought, and we are seeking to clear the issue up at this juncture. The problem is that the proposed approach is not only unworkable but does not reflect the reality of those who live and work on the border at all.

Our understanding—we need some clarity from the Minister on this—was that the Government were considering an exemption for those who are not UK or Irish citizens but who are resident. That would cover people who are settled or resident in Ireland and who may cross the border multiple times a day for work, healthcare or childcare. It does not solve the issues of the tourism industry, but it would have been a major step forward. The concession seemed to have been considered—but then it just disappeared. What happened to it? What will the Government do on this issue? Notwithstanding that, we very much support Motion T1 in the name of my noble friend Lord Murphy. We need this exemption to be confirmed and in the Bill.

Finally, the Government are in real difficulty on Motion U, on maritime enforcement powers. The Home Secretary has failed to convince not only Members of your Lordships’ House on her proposals for pushing back dinghies in the channel but the Royal Navy, the Ministry of Defence and Ministers of this Government, who are saying they would not put these policies into action. We will not stop challenging the Government on this issue, but it is clear that this will continue outside the Bill, so I do not intend to vote a further time on it here.

A number of very serious amendments have been put forward. At their heart is the desire of this House to say to the Commons that it needs to think again, providing that they are passed. We seek clarity from the Government on this Bill. That clarity is needed, and that is what these amendments seek to provide.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department 5:15 pm, 4th April 2022

My Lords, I thank all noble Lords who have spoken in this debate.

In moving Motion A, I neglected to thank the noble Baroness, Lady Lister, who also attended the meeting about the Chagossians. I thank her for her kind words and acknowledge the role she has played. It sounds like there is agreement to the proposals we have put forward in Motion A. They were definitely well received by the other place and the Chagossian community. The route will be open in due course. I will keep the noble Baroness and the House updated. The Home Office will need some time to put in place the processes that will allow applicants, wherever they live, to make an application for BOTC and British citizenship. This will include creating access to historical records, which will help applicants demonstrate that they are direct descendants of someone born in the BIOT. I will update the House as soon as we have some clear idea of timescales.

I also confirm that, as the noble Baroness said, there will not be application fees. In the meantime, we will continue to work to deliver the £40 million support package she referred to, and we are working with the FCDO to consider whether we can use these funds to support Chagossians seeking to relocate to the UK, which seems a sensible use of the funds. I commend the measures to your Lordships’ House.

I turn to Motion B. I hope noble Lords will agree, as we have already done on Report, with the amended deprivation of citizenship clause. Thanks here are due to the noble Lord, Lord Anderson of Ipswich. We are simply not talking about measures which could affect 6 million people; we are talking about situations where a naturalised person has acquired citizenship fraudulently, or where this is conducive to the public good. I repeat, deprivation on conducive grounds is used sparingly and against those who pose a serious threat to the UK or whose conduct involves high harm. Appeal rights kick in when a person receives the notice telling them of the decision to deprive them of their citizenship. I also point out that the courts have found that only the deprivation order made without notice in the case of D4 was invalid. They did not find that all such orders are invalid. With respect, I therefore ask the noble Baroness, Lady D’Souza, to withdraw her amendment.

Turning to criminal offences and Motions L and M, I repeat that we want to ensure that prosecutors have maximum flexibility to deal with people arriving in but not entering the UK and also to tackle people smuggling. I have set out the sort of circumstances in which we expect these offences to be prosecuted. Amendments proposed by the noble Lords, Lord Coaker and Lord Paddick, would undermine our efforts to tackle egregious forms of criminality, and I invite the noble Lords not to press them.

Moving on to electronic travel authorisations, in Motion T, I was interested to note that the arguments being made against them are actually the reasons for the Irish to introduce one. Once the EU’s comes into force next year, Ireland will stand out as one of the few countries in Europe without an ETA-style pass, among all the other countries that have them. I am very grateful to the noble Lord, Lord Murphy of Torfaen, for explaining to me—an Irishwoman, with a father from Northern Ireland—the context of his amendment. We accept the need for further dialogue with interlocutors, including the Irish Government, Tourism Ireland and Tourism Northern Ireland. I totally accept that point.

I would also like to tell the House that the secondary legislation that will underpin the scheme, which will include details of fees, will be brought forward once the Bill receivers Royal Assent. I can provide assurances that the fees will be competitive with those of comparative systems run by other countries.

In response to concerns about tourism, I observe that people travel for a whole host of reasons, and while the cost or requirement to obtain an ETA in advance of travel may be a consideration, the experiences of other countries with similar schemes show that it is very unlikely to deter a genuine visitor. Once granted, an ETA will be valid for multiple trips to the UK. The cost is likely to be very small for travellers, relative to the cost of travel and the benefits of visiting the UK, and therefore it is unlikely to deter the majority of visitors. Moreover, many of the UK’s international partners have taken a similar approach to border security—the United States of America, Canada, Australia and New Zealand—meaning it is a very familiar concept for travellers. I invite the noble Lord not to press his amendment.

That leaves us only with Motion U. The preservation of life at sea remains our priority and we do not think we need to put this in the Bill. We therefore hope that noble Lords will not insist on this amendment; it is not necessary.

Motion A agreed.