Motion B1 (as an amendment to Motion B)

Nationality and Borders Bill - Commons Amendments – in the House of Lords at 4:15 pm on 26th April 2022.

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Baroness Chakrabarti:

Moved by Baroness Chakrabarti

At end insert “but do propose Amendment 5D in lieu—

5D: Insert the following new Clause—“Interpretation of Part 2(1) So far as it is possible to do so, the provisions of this Part must be read and given effect in a way which is compatible with the Refugee Convention.(2) If a court or tribunal determining a question which has arisen in connection with the provisions of this Part cannot read and give effect to those provisions in a way which is compatible with the Refugee Convention, it must make a declaration to that effect.””

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, in moving Motion B1 as an amendment to Motion B, I also support other amendments.

Extra-parliamentary events since your Lordships’ last consideration make anxious scrutiny today even more important. I refer of course to atrocities in Ukraine and the Maundy Thursday MoU with Rwanda, but also to the unsuccessful Home Office attempts to assert public interest immunity, or secrecy, in the High Court over parts of the subsequently withdrawn little boats push-back policy. Contrary to everything both Houses, voters and desperate refugees were led to believe, the Government always knew that there was no legal basis for repelling a boat containing souls declaring a wish to claim asylum.

The importance of such matters being justiciable in court is therefore clear. From her answers to yesterday’s PNQ, I am glad to say that I do not think the Minister disagrees with that. Nor, to his credit, did the Minister in the other place present any policy difference on that point. He repeatedly asserted ongoing intentions to comply with international law, and specifically to comply with the refugee convention and ECHR together.

I have listened—and indeed pre-empted the constitutional concerns that the Minister just set out—and redrafted to make the refugee convention protection in the Bill no more, but no less, than that already provided for in law by the ECHR, thus making the new Amendment 5D even more respectful of the primacy of the other place and reasonable than its predecessor amendments. I beg to move.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct, Chair, Sub-Committee on Lords' Conduct

My Lords, I rise to support Motion B1. “Nothing matters very much, and very little matters at all.” So said Lord Balfour of Balfour Declaration fame a century ago. But Lord Balfour was not then faced, as your Lordships now are, with a Bill which most—if not all—disinterested lawyers recognise that, first, without the amendment now proposed, would breach international law under the convention and, secondly, at the same time would nevertheless make unchallengeable the question of this legislation’s legality. Noble Lords should note that if the Bill passes without this provision, the legality of these provisions cannot even be raised before a court of law.

That will be the position unless we have the guts or—let me rephrase that—unless we are sufficiently alive to what surely is our constitutional duty as a revising Chamber to insist on the amendment to pass Motion B1. So, pace Lord Balfour, this really does matter very much.

I hope noble Lords will allow me another few words. I read again yesterday the disheartening, positively dispiriting House of Commons debate last week, which summarily rejected our amendments from the last round of ping-pong. The amendment originally in the names of the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, was dealt with even more dismissively and cursorily than the first time round. This time, there was no pretence that the courts could decide whether or not this new Bill will be convention-compliant. Previously, the Commons had been—as I accepted last time round—entirely inadvertently misled into thinking that the courts would have a say on it.

It is acknowledged on all sides that the Bill as it stands would overturn a quarter of a century of established English law as to the proper meaning of the convention. Of course, that is also the view of the UNHCR, which advises that we would be breaking international law by passing this legislation without such an amendment as now proposed. Therefore, it is now recognised that if the amendment fails to pass, the Bill will—the words can be used—foreclose or pre-empt the question as to the legality of these clauses. The clauses, in effect, would therefore operate as ouster clauses.

All the Minister in the other place said last week was:

“The Bill—I insist on this in the strongest terms—is compatible with all of our obligations under international law. Our position has not changed and we do not consider it necessary to put this on the face of this Bill.”—[Official Report, Commons, 20/4/22; col. 239.]

In other words, the Bill that we are now asked to approve without the amendment is simply proclaimed by the Government to be compliant. We are asked to accept the mere self-serving say-so—the assertion—that it is compliant, although, as I have said, it is unsupported, so far as I am aware, by any respected body of opinion charged to look into these things: the Joint Committee on Human Rights, the Bingham Centre, et cetera, and including, as I said, the UNHCR, which is charged specifically under the convention with the superintendence of the proper interpretation and application of the convention.

That is enough. I am sorry if this imperils our hopes of Prorogation this week, but I urge your Lordships to summon up the blood, stiffen the sinews—not, I think, Lord Balfour in that instance—and to continue to reject and challenge this further melancholy attempt to usurp our law.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, I too speak in favour of Motion B1, in the name of the noble Baroness, Lady Chakrabarti. I declare my interest as a practising barrister who sometimes acts in immigration cases.

As the noble and learned Lord has said, the overwhelming view of lawyers and interested, informed persons is that the provisions of the Bill breach this country’s obligations under the convention on refugees, which this country has signed. Ministers have repeatedly asserted to the contrary that they have failed to respond in any way to the reasoning of the critics.

If the Minister were to say to the House, “This is our policy and we wish to go ahead with it, even though it breaches our obligations under the convention”, I would respect the honesty of the Government—but that is not their position. They are making legal assertions that simply defy credulity. This is an issue on which the House should invite the other place to think yet again, because it is an issue of the rule of law—and this Government and this Prime Minister have a poor track record, to put it mildly, on such issues.

In previous Conservative Administrations—and of course Labour Administrations—the Attorney-General and the Lord Chancellor would have stood up for the rule of law. They would have reminded their colleagues of the obligations of a Government. That was the position under the Thatcher Government, under the John Major Government and under Theresa May’s Administration. There are Members of your Lordships’ House who served in these Administrations. The noble and learned Lord, Lord Mackay, served as Lord Chancellor, as did the noble and learned Lord, Lord Clarke. They performed their obligations in that respect. Unfortunately, and for many reasons, in the current Administration, the Lord Chancellor and the Attorney-General have repeatedly been silent on rule-of-law issues—and this is one of them. Since they will not speak out, I suggest that it is the obligation of this House to do so.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour 4:30 pm, 26th April 2022

My Lords, while supporting all the amendments in this group, I speak to Motion D1 in my name, taking up the baton from the noble Baroness, Lady Stroud, whom I thank for her persistent commitment on this issue, which remains undimmed. As previously, the amendment would give asylum seekers the right to work in any occupation after six months, but it introduces a review after three years—rather than four, as previously—to assess whether government fears about such a right creating a pull factor are founded.

The Commons reason for not accepting the previous amendment states that

“the Commons consider that asylum-seekers (save in limited circumstances) and their adult dependants should not be permitted to work while a decision on their claim for asylum is pending”.

This is the equivalent of a parent telling a child that they cannot do something “because”. It is not a reason.

During the debate in the Commons—such as it was—the Minister reiterated concerns about undermining the economic migration scheme, and our old friend the pull factor. But there is no reason why a right to work after six months should undermine the economic migration scheme, and, as Sir Robert Buckland pointed out, he and others

“have said on many occasions that there is simply no evidence to suggest that a limited right to work is a pull factor.”—[Official Report, Commons, 20/4/22; col.240.]

In fact, the academic evidence suggests the opposite, and the Migration Advisory Committee has expressed considerable scepticism.

The other argument put by the Minister in the other place, which was repeated by the Minister here, was that the Government want to see claims settled within six months. However, when he was asked by one of his Back-Benchers to confirm that the Bill and other measures

“will mean that there should be no asylum seekers still in a state of limbo, waiting for their asylum status to be determined, after six months”,—[Official Report, Commons, 20/4/22; col.253.] thereby making the amendment unnecessary, answer came there none. It would be wonderful if the amendment proved to be redundant, so that there were no longer 62,000 people awaiting a decision for more than six months, but the Government’s resistance to it suggests they are not confident that claims will be settled within that timescale. The Minister this afternoon suggested that the amendment would create significant operational costs for the Home Office. I am not quite clear what those costs are, but presumably there are savings from asylum support, and calculations have been done, which I know are contested but suggest a considerable fiscal saving overall from the amendment.

If we believe in integration, for which, according to MAC, the right to work is a key foundation stone, in preventing poverty and in protecting mental health, we should not give up on this amendment. In the Commons, 11 Conservatives, including a number of former Ministers, supported its previous iteration and 53 abstained. Earlier, the noble Lord, Lord Bethell, in this House, emphasised that, on basic Conservative principles concerning paid work, current policy fails dismally. Public support has been growing steadily to a point where the latest poll last month showed that at least four in five support the reform, regardless of political affiliation.

Once more, I would like to give the final word to asylum seekers themselves. MIN Voices, which I recently had the pleasure of meeting virtually, in its call for the right to work, asks us to

“remember that we are human beings and we have dignity”.

I fear that, in its refusal to countenance change, the Home Office is failing to remember. Let us, at least, accord to asylum seekers their humanity and dignity by asking the Commons to think again.

Photo of Baroness Stroud Baroness Stroud Conservative

My Lords, I will speak to Amendment D1, and I am grateful to the noble Baroness, Lady Lister, for her eloquent introduction to the amendment. This is a common-sense change. It would be a boost for the Treasury, for recruiters and, not least, for asylum seekers themselves. They often wait years for a decision on their claim while battling poverty, isolation and mental ill-health. However, the Government appear to want to maintain a ban on employment for asylum seekers, even after the introduction of their offshoring policy. They say that giving people the right to work will still encourage more people to come to the UK.

This pull-factor argument, however, is simply not supported by the facts. Evidence for it remains unclear, unshared or—as many suspect—non-existent. A challenge to Ministers from the Government’s own Migration Advisory Committee to show proof of a link between the employment ban and a pull factor has so far gone unanswered. Publicly available and up-to-date figures show no correlation. If such a correlation, or even causation, existed, asylum migration would look very different from how it does today. Certainly, 28,000 refugees would not have risked their lives crossing the channel in boats in 2021 to come to the UK, where they cannot work; they would have headed to Sweden, which received just 10,000 applications for refugee status, even though asylum seekers can work after day one.

The 62,000 people who claimed asylum in Spain last year, where they must wait for six months to work, would have simply crossed the border into Portugal, whose 1,300 asylum applicants can get a job after one week. The people who applied for asylum in France—over 100,000 of them—where they must wait six months to work, could have just stopped in, or headed to, Italy, where they can work after two months. That some countries with stricter labour access laws often receive more asylum seekers, while, in many cases, fewer refugees go to countries with more relaxed rules around work, shows the lack of link between application numbers and employment rules. As we have repeatedly said in these debates, what the overwhelming evidence does point to as pull factors are those things that make almost all of us feel safe: our families, our friends, our communities, our language, a sense of shared history, and a country with a stable Government and respect for human rights.

We have an environment in which Ministers are nervous of appearing soft: I understand that. They are so nervous that even a widely beneficial, evidence-based, common-sense policy such as the right to work has yet to be accepted because it might make Britain a magnet. But I believe that this is wrong, and, while the negative and costly effects of this ban might not seem obvious, they are real. The ban costs the taxpayer an estimated £210 million a year. It leaves asylum seekers in poverty and institutionally dependent; it leaves businesses up and down the country without extra hands at a time of record job vacancies; it takes a terrible toll on people’s mental health; and it damages any attempt at integration and future employment success.

It should not be so hard to reach agreement on a policy that has so much cross-party support and so many benefits. I spent years at the DWP, as a Conservative special adviser, working to support people into work and off welfare, only to be hindered from advancing the same opportunity to those who have sought the protection of this nation.

The instinct to work, to contribute and to provide for one’s family is universal and integral to who we are as human beings. It is what it means to be human, each one according to their talent, gift, capacity and capability. We damage people when we forbid them to contribute. I urge the Government to keep thinking and to think again.

Photo of The Bishop of Manchester The Bishop of Manchester Bishop

My Lords, I confess that I thought I had finished with ping-pong when I laid down my bat as table tennis captain of my college at university more than four decades ago. This is my first time at it in this rather different setting.

I rise to speak in support of Motions F1 and H1 in my name. I am extremely grateful to my right reverend friend the Bishop of Durham for his excellent previous work on these Motions. He is unable to be in his place today, so we worked on them together. I am also grateful for a letter I received this morning from leaders of many of the main Christian denominations in the United Kingdom, urging me to continue to press on these matters.

Clause 11 continues to be the most challenging part of the Bill in the way it differentiates the treatment of those who seek sanctuary in the UK. Therefore, I continue to support Motions B1 and C1. I also support Motion D1 and pretty well all others in this group.

It is a long-established principle of UK law that, when removing an individual to a third country, the UK has an obligation to ensure that this will not violate the person’s human rights or the UK’s obligations under international law. It is also a long-established principle, affirmed by the Supreme Court, that it is not enough for the third country to have signed international human rights treaties; it must respect them in practice.

Motion F1 would ensure that the UK can transfer an asylum seeker to another country only if that country is genuinely safe, both in law and in practice, for the individual being transferred, and where that individual’s rights under the refugee convention and human rights law will be respected. The Motion would also prevent transfers under agreements such as the recent Rwanda-UK memorandum of understanding, which as I understand it is not legally binding on either party, where the standards of treatment in the receiving country are unspecified and unenforceable in any court. It is essential that clear minimum standards are set to ensure the UK does not send people we consider to be refugees, both legally and morally, to a country where they may be denied protection and put at risk of refoulement.

I listened to the Minister’s assurances earlier and am grateful for them, but the UNHCR is clear:

“Such arrangements simply shift asylum responsibilities, evade international obligations, and are contrary to the letter and spirit of the Refugee Convention”.

In its latest annual report, Amnesty International set out that in Rwanda:

“Violations of the rights to a fair trial, freedom of expression and privacy continued, alongside enforced disappearances, allegations of torture and excessive use of force.”

Moreover, the Home Secretary’s response to understandable concerns about Rwanda’s human rights record that were raised in the other place demonstrates the risk that the designation of a particular country as safe may not be simply because it is safe but may become politicised or be influenced by broader foreign policy concerns. It is right that this country has foreign policy concerns, but they must not bleed into decisions about what is a safe country to which an asylum seeker could be sent. We need a clear, independent and enforceable legal standard.

My right reverend friend the Bishop of Chelmsford set out in a recent letter to the Home Secretary that the current plan to offshore asylum seekers to Rwanda

“treats the most vulnerable in our midst in a cruel and inhumane way”.

My most reverend friend the Archbishop of Canterbury has put it even stronger, in words I will not remind the House of this afternoon.

Without the provisions set out in this amendment, the only bar to relocating an asylum seeker to a country with which they have no connection would be for each individual asylum seeker to demonstrate that removal there would violate their human rights under the European convention. Furthermore, demonstrating a risk of refoulement from a third country requires demonstrating that its asylum provisions are inadequate. This is something that requires expert knowledge. That is not practical for the vast majority of asylum seekers to demonstrate in their individual cases.

I turn to Motion H1. My colleague, the right reverend Prelate the Bishop of Durham, has previously said:

“The fundamental premise of the Bill is that people seeking safety in the UK should arrive by safe and legal routes, rather than by making irregular journeys.”

Nobody wants little boats in the Channel. The problem is, he goes on to say, that

“there are not sufficient safe routes from the countries where the majority of asylum seekers arriving in the UK originate.”—[Official Report, 4/4/22; col. 1890.]

I listened carefully to the Minister’s numbers earlier when she introduced this group of Motions, but in 2021, 43% of asylum seekers arriving in the UK were from the Middle East—a large number from Iran, Iraq and Syria; that is the highest proportion and number ever recorded. The UK resettlement scheme does provide a safe route, but the numbers that have been processed are pretty small and totally inadequate for the level of legitimate need that is out there. For those who are not Hong Kongers, not Afghan, not from Ukraine or not subject to a special rule, it is deeply concerning that at this very late stage no plan has been set out for how the Government intend to enhance their resettlement routes. A practicable but flexible resettlement target, published each year, would enable the Home Office to respond swiftly to immediate and intractable refugee crises. Indeed, the creation of an ongoing resettlement programme would also remove uncertainty. It would incentivise providers across the system to forward-plan and retain resettlement infra- structure that can be strengthened as needed, sometimes at fairly short notice.

I urge Her Majesty’s Government to commit to setting out safe and legal routes and a numerical target, as set out in Motion H1. I urge the Minister to accept both Motions F1 and H1, but if she does not, and subject to my listening carefully to the continuance of this debate, I am presently minded to test the opinion of the House on Motion F1.

Photo of Viscount Hailsham Viscount Hailsham Conservative 4:45 pm, 26th April 2022

My Lords, I shall speak to Motion F2, which stands in my name. Perhaps I might make three preliminary points. First, I apologise to your Lordships for having come late to this debate. I was moved to table Motion F2 by the Government’s announced decision to enter into the agreement to offshore responsibility for asylum seekers to the Government of Rwanda; that is what has moved me to participate. Secondly, as alluded to by the right reverend Prelate the Bishop of Manchester, the substance of Motion F2 is in fact drawn from the Motion moved by the right reverend Prelate the Bishop of Durham, which successfully passed in this House on 4 April. Lastly, on a point alluded to by the right reverend Prelate, Motion F1, which he tabled, is of course to be considered before F2. I am sure that the right reverend Prelate, and certainly myself, will listen very carefully as to the sense of the House, as to whether there is support for either or both and, if so, in which order; that doubtless will influence us in deciding whether to test the opinion of the House.

The purpose of Motion F2 is a simple one: to ensure that the designation of a state as a safe country requires a resolution of both Houses of Parliament. As to the merits of the policy, I have very grave reservations about the cost and practicality of the Rwanda proposals. The experience of the Israeli Government, when they tried something rather similar, is not encouraging. I have great reservations about the legality of what is proposed. I accept of course that the noble Lord, Lord Pannick, has much greater expertise in this field than I do.

I note, of course, that Ministers have repeatedly said that the policy is consistent with international law and our obligations under the 1951 convention. Ministers repeatedly said that the policy of turning back the boats of asylum seekers was both legal and practical. However, it seems that, in the face of legal challenge as to both the practicality and the legality of the policy, the Home Office yesterday backed away from that position. I view the advice from this Home Office on these matters with very great caution.

Above all, my reservations about the Rwanda policy are based on my concerns as to its propriety. Can it be right to offload to somewhere else the responsibility for individuals who, for a time, have come into our jurisdiction? By doing so, we will have ensured that Ministers who are responsible for where they have gone are not accountable for the way in which they are treated, and I am finding myself extraordinarily uncomfortable with that concept. I might say, as someone who was here yesterday morning when the Minister had to answer a Private Notice Question on this matter, that I think she would agree the House was deeply concerned about that proposal.

However, if the Government wish to proceed with this policy, I can see no reason in principle why they should not seek as a precondition the express authority of Parliament. If I have correctly interpreted the Minister’s remarks in the debate on 4 April with regard to the 2004 Act, the principle of the affirmative resolution as a precondition to adding states to the list of safe countries has already been conceded. As I understand the 2004 Act—and it is not an easy one to understand—in respect of transfer to safe countries it provided for individual certification in respect of specific persons, whereas the present Bill is general in its application. But the principle of the affirmative resolution has been conceded; it is in legislation. So by all means have a debate about necessity but let us not have a debate about the principle, because that has been conceded.

The express parliamentary sanction for this policy is what Amendment F2 proposes—nothing more, nothing less. Before that consent will be given, the Government will have to satisfy Parliament that the criteria in paragraphs (a), (b) and (c) of new subsection (2B) contained in Schedule 3 are complied with.

The position of the Government as set out on the Order Paper is that it is not necessary to make the designation of a safe state by order dependent upon a statement as to costs. That was the position in the amendment moved by the right reverend Prelate the Bishop of Durham but it is not the position today, because the requirement for an assessment of costs has been removed from Amendment F2, which stands in my name.

In my view, it comes down to this: decisions of this kind, which affect the future and liberty of subjects of other countries but who have come here, is a matter that should be resolved by a vote of Parliament, not by the sole decision of the Executive. It is in furtherance of that view that I hope your Lordships, if circumstances allow, will support Amendment F2 in a Division.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

I shall speak to Motion C1, which takes us back to the refugee convention. The House may well think that, after the learned crescendo from the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Brown, there is nothing left to say on the subject—but I will try. The fact is that the biggest and most blatant breach of the convention in this Bill is in Clause 11; this brings in the two-class system, with the underclass not allowed convention rights or access to public funds because they did not come directly from the country where they feared persecution.

I have to say to the Minister that the safeguard of Clause 36 is insufficient. You cannot come directly from Asmara, Sana’a, Kabul or Kyiv—and in any case, of course, the convention does not allow for such segregation. When we signed up to it, we agreed that the only check made would be whether the asylum seeker’s fear of persecution was real and well founded. That is what we have always done. Among those asylum seekers arriving by irregular routes—I note that, in every one of the last 10 years, there have been asylum seekers coming from Rwanda—75% of those coming by irregular routes have been found by the courts to be genuine asylum seekers and have been granted asylum. Their fears were well founded, but this Bill would put all of them in the underclass, with no convention rights.

This House has twice, by large majorities, thought that wrong, and that we should continue to honour the convention deal. As the noble and learned Lord, Lord Brown, reminded us, noble and learned Lords have repeatedly challenged the Government to explain why they see no incompatibility between the Bill and the convention. The Government’s silence has been eloquent. In the other place, on 20 April, a junior Minister took two sentences to dismiss our views. Our principled objections to Clause 11 were not refuted, explained, or even mentioned.

My amendment today concedes the differentiation that the Government want, but diffuses it. They can have their two classes, provided that the distinction takes account of the fact that you cannot come directly from a warzone, and provided that those in the underclass are not made destitute, losing all their convention rights. Although the Government say that it is, this is not about small boats in the channel. Illegal, inhumane differentiation would have no deterrent effect because these are desperate people. The way to defeat the traffickers is to open safe routes and not to close the family reunion route as this Bill seeks to do.

I am no lawyer, as is probably obvious, but I have served my country for long enough to see how international reputations are built over time and destroyed overnight. Britain’s reputation on humanitarian issues is a national asset, which should not be lightly thrown away. And for what? As the noble Lord, Lord Paddick, keeps reminding us, asylum seekers represent 4%, or sometimes 5%, of the annual immigration flow.

Finally, I have to say to the Minister that the Vienna Convention on the Law of Treaties does not permit a free-for-all of conflicting national interpretations, and it is misleading to imply that it does. In this House, we tend to insist that the rules-based system and international law matter. On the internal market Bill, we insisted, and our insistence carried the day. I think we must again insist that the other place finally address the big issue—better late than never—and think again about Clause 11. So, I am afraid, it is once more unto the breach, dear friends.

Photo of Lord Horam Lord Horam Conservative 5:00 pm, 26th April 2022

My Lords, I shall add a little balance to this debate by speaking on behalf of the Government on this particular Bill. I speak in particular to Amendment C1 from the noble Lord, Lord Kerr, Amendment B1 from the noble Baroness, Lady Chakrabarti, and Amendment H1 from the right reverend Prelate the Bishop of Manchester. I say straightaway that I have great sympathy for the point of view they put forward in those three amendments. In particular, it is almost certainly the case that there are not enough legal routes for genuine refugees to this country. I recognise what the Minister said about the extent to which we have already accommodated refugees and the figures she quoted, but I still think that we do not have enough legal routes for the generality of refugees, leaving aside those from Hong Kong, the Afghans and Syrians and so forth.

The noble Lord, Lord Paddick, made the point very well on the previous group of amendments that if we compare the number of asylum seekers to the number of economic migrants—the number of work visas, for example—that is the real problem: in numbers. It is numbers I am concerned about principally and not the number of asylum seekers, which is comparatively small. I would trade a reduction in the number of economic migrants—people taking work visas, particularly the golden visas we have heard about more recently as a result of the Ukraine war—for an increase in the number of legal routes for genuine asylum seekers. That would be a very sensible thing to do. Not only that but it would be humane. I would do it on the simple humanitarian grounds that some people need legal routes more than purely economic migrants.

But the problem with that argument is that it only goes so far. First, there is the capacity to absorb new immigrants, given where we are with a large number of work visas, family visas and undergraduate visas each year and, on top of that, the Ukrainians, those from Hong Kong and the rest, and particularly as most immigrants go into the poorer areas of our country. If you read about or experience, as I have done as a former Member of Parliament, the effect on housing, schooling and GPs in the poorer areas of this country of a rapidly increasing number of immigrants over quite a short period, you can see the anger and despair of ordinary British people dealing with this situation. You cannot leave that out of account, particularly when one of the Government’s major objectives is the levelling-up agenda, which is precisely to help those areas most affected by the number of immigrants coming into the country, whether those are the large number of economic migrants or the smaller number of genuine refugees.

Finally on this point, however many legal routes we may have, we will not stop the traffickers in human beings just by having more legal routes. We have to tackle the problem directly. While there is a way of getting to this country by paying somebody £2,000 or £3,000 to come across the channel, people will take that opportunity. That is the difficulty. While I respect the views of the Opposition and the independents that we need more legal routes, that will not solve the problem of the traffickers across the channel. That is why we have this Bill; we need to tackle that problem directly.

I fully agree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the noble Lord, Lord Pannick, on the important point they made about the 2001 refugee convention. I do not want this Government to step outside that in any way. It would be a tragedy if that happened. It should not be allowed to happen; I believe that it will not happen. The noble Lord, Lord Pannick, said that there had been no really serious arguments from the Government against his position on this issue, but he must have heard the arguments from the noble Lord, Lord Wolfson of Tredegar, earlier in this Bill’s passage. At some length and across several columns of Hansard, he set out in detail exactly what the Government’s position was. Surely the noble Lord, Lord Pannick, must agree that the noble Lord, Lord Wolfson, was very persuasive. He may not agree with him, but he was certainly persuasive in his full and detailed account of the Government’s position and why what they are doing remains within the refugee convention. That is the first point.

Secondly, lawyers such as the noble and learned Lord, Lord Brown, and the noble Lord, Lord Pannick, are arguing this in theory and in absentia, being in the Chamber as we are. However, it has already happened in Australia, which has for many years had an offshoring policy agreed between all the parties. In the early stages of that process, its Government had to argue precisely what our Government are arguing now: that what they were doing by way of offshoring was within the 1951 convention and did not abrogate or step outside it in any way. There were court cases in Australia on precisely this point. The Australian Government won them all, because they showed clearly that they were not stepping outside the 1951 convention. So there is that evidence from another country which has done precisely what our present Government are doing.

In addition, the Australian Government did a sensible thing. Throughout the long development of their offshoring policy—it took two or three years; this is not something that will be resolved here overnight, perhaps not even in a year or two—they made a point of having a dialogue with the UNHCR, which is the guardian of the refugee convention. At every stage, they took the trouble to talk to not only the UNHCR’s headquarters in Geneva but to its local regional representatives and to allow them to inspect exactly what was happening in the offshoring areas and in Australia itself. This kept the UNHCR on board, if you like, so that it had no reasonable reason to disagree with what the Australian Government were doing. I hope that our Government will do exactly the same thing, because it is sensible to do so. We want the UNHCR to have an understanding that what our Government are doing is sensible and appropriate. We do not want to be excessively controversial.

There is a more general point about this Bill, which I have mentioned before. It is an enabling Bill. It simply sets the scene and gives the Government the power to do something. It is not the final policy. We are way off a final policy. For a start, we must have a sensible arrangement with France to deal with all this. I am sure that that will be a necessary part of any government policy. Having a sensible arrangement with France may be rather easier now that we know who its president is, but it will not be enough for Boris Johnson to say, “Donnez-moi un break, Emmanuel”. He will have to have a much more rounded policy, which may take several years given all the other issues we have with France on shipping, the Northern Ireland protocol and all the rest of it. It will take a long time to sort that out; it is far from finished.

Equally, on offshoring, although I hear what my noble friend the Minister said about what information is available, I still feel extremely vague about what is happening. I have no idea whether it will work. I have many questions about how this is going to be pursued. It may be a disaster for all I know. I think that a great deal will depend on how exactly it is executed. Again, the Australians, who did this, always say to me that it takes great effort to get these sorts of policies going because they are international policies involving other Governments and you have to get that all right.

So what we are saying here is that this is an enabling Bill. I ask the noble Lord, Lord Kerr, to think back to his period as a distinguished diplomat. He might well be saying to the Government, in these circumstances, “Keep the Bill as broad as possible. Give yourselves as much room to manoeuvre as possible, because you simply do not know what will come up in the course of these negotiations with France, Rwanda or whoever”. You have to allow for that and, if you find yourselves in a situation in which you would like to pursue a course of action but cannot, because the Bill simply does not allow for that and we do not have the legislation in place, it would be a disaster for the Government.

In that respect, we should consider that the Government do not have a final policy. We have an enabling Bill. Is it right for the Lords to prevent the Commons from even trying to have this policy, which may or may not eventually work? We should remember that, in the most recent votes on this, there was a majority of 70 or 80 in the Commons—more or less the government majority, without any dissent—on every single resolution put to it, against us and in favour of their arrangements. I cannot quote the present Attorney-General, but I can quote a recent one, Sir Robert Buckland. He is not necessarily any friend of the Government, as we know, because of the history there. He was the Attorney-General and is now the MP for South Swindon. He said that he worked with Priti Patel on the Bill and that

“it is in direct fulfilment of our manifesto commitment. There is no doubt in my mind about its importance and about the need for it to be passed.”—[Official Report, Commons, 22/3/22; col. 212.]

That was the view of a recent Attorney-General, Sir Robert Buckland, who is no one’s idea of a raving right-wing Tory.

Finally in all this, I think the Government should try to get as much consensus as possible, because I suspect this will be with us for several years—perhaps even over more than one Government, as it was in Australia. They should establish a forum for debate, where critics of the Government can talk and explain their worries and concerns. Maybe churchmen should be in it, and maybe the Refugee Council. The noble Lord, Lord Kerr, is a trustee of the Refugee Council, so maybe he should be on this forum. Something like that would be a means of discussion whereby we do not just talk at each other across the Chamber and in the newspapers, but talk seriously about this very important problem, which any Government of whatever description would have to resolve—namely, these illegal boat trips across the channel.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, I will be very brief after that monologue, which I found extremely boring. Forgive me if I am being rude; I do not know whether I am trespassing on any rules. But, really, if the noble Lord is coming to the Chamber, perhaps he could bring a speech and not choose to deliver some sort of long ramble, when we are quite short of time.

I am going to talk about Motion F1. I have listened to the Government and the Minister talking today about Rwanda and, quite honestly, I think their representation of Rwanda is extremely flawed. I draw the House’s attention to one report from Amnesty International, in 2021, last year, which produced a review on Rwanda that said that there were huge human rights concerns. For example, abortion remains illegal in most circumstances. The Government interfere in the right to fair trial, including torturing the accused, denying access to legal counsel and confiscating legally privileged material. They arrest journalists and opposition politicians, and there are deaths in custody.

What is happening? The Government talk all the time about stopping these trafficking gangs, but our Government are becoming a trafficking gang. They are going to take people abroad and leave them there. They are taking them to a country that has human rights abuses. This is inhumane and cruel, and I will be voting for every single amendment today, because the Government have overreached and are making themselves an embarrassment for us in the world.

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Chair, Built Environment Committee, Chair, Built Environment Committee 5:15 pm, 26th April 2022

My Lords, I shall speak briefly—although I did think my noble friend Lord Horam, having been an MP, had a common-sense perspective.

I do not agree with Motion D1. The proposed right to work after six months here would be a significant pull factor, in addition to those already outlined by my noble friend Lady Stroud. It could even undermine the points-based system that is already leading to the UK welcoming many more people and more students now that Covid is largely behind us.

As noble Lords will recall, my main concern during the passage of the Bill has been the constantly expanding numbers of people arriving across the channel in small boats, sometimes with tragic consequences. The Rwanda proposal is a brave attempt to discourage the large number of young men, resident in France—which is a free country—who wish to come to the UK, mainly for economic reasons. Sadly, the vociferous critics of this proposal, some of whom we have heard from today, have no alternatives to propose. So I shall be supporting the Government today. I thank the Minister for all she has done to engage and for doing her best to progress this obviously difficult Bill.

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated

My Lords, I rise with some hesitancy because I feel I am likely to be chastised for rambling, saying the wrong thing and going on too long. But let me see if I can entertain you.

I think that this is a very important and serious moment in a discussion on a very important and serious matter. I do not feel that this Bill will resolve it. I have been critical throughout on a range of issues and I feel that the Government have wasted opportunities —but I am not going to remind noble Lords of that.

At this point in the passage of the Bill, having listened to the considerations in the other place, we should recognise with a certain humility that the failure of the Government or Parliament to deal with the arrival by irregular routes of so many people is seen by so many citizens of this country as making a mockery of border control. This has led people to welcome the Rwanda solution as “At least somebody is trying to do something”. People will ask, “What would you do about the boats crossing the channel?” It is fair enough for people to say that, if something appears to be a deterrent, maybe we should try it.

As it happens, I agree with the noble Lord, Lord Horam, that there are not enough legal routes. I would like to open up a debate about more economic migration for unskilled workers. This might not go down well with my fellow citizens, but I should like to try to win that argument. I am fed up with having to describe people who want to come into this country as asylum seekers, when I know that many of them want a better standard of living—and why should they not have it? I defend them.

But we are not even having this debate. In this House, all the emphasis is on international obligations and the rule of law. There is little discussion about our obligations to the sovereignty of this country or the rights of British citizens of all ethnicities who worry about the fact that borders are not controlled. Perhaps I may remind noble Lords who are sighing that in a different context people are perfectly happy to grandstand about nation states, national sovereignty and the importance of border control—but that is only when you are talking about Ukraine. This is a different question.

On the Rwanda scheme, while I do not think that subcontracting our responsibilities to refugees to another country is against the nature of God, I actually do not like it. It is largely a cowardly decision. Despite what I have said, I would not choose this method. Over many years I have argued against such an approach, because I have always thought that any organisation that outsources or subcontracts its obligations on migration—particularly to heavily beleaguered countries—to police its borders on their behalf is washing their hands of a problem that they should tackle.

When I was criticising other places for doing this, I was criticising the EU—fortress Europe—which, for decades, has had a history of dumping asylum seekers on its non-EU neighbours. In 2016, the EU signed a deal with Turkey in exchange for £6 billion. President Erdoğan—that democrat—promised to stop Syrian refugees crossing the Turkish border into Greece and Bulgaria, and anyone found to have entered Greece was illegally deported to Turkey. The EU’s outsourcing of its migrant policy to, first, Colonel Gaddafi and, when he died, to warlords and militias or EU-funded Libyan detention centres has been a humanitarian disaster with torture and slavery at its heart. As it happens, Rwanda is not in that category, but I am always nervous about outsourcing to poor African countries that need the money; it seems unsavoury and cowardly. The reason these policies, which I feel avoid difficult problems, are greeted as they are by people is that they want something to be done. It equally avoids the problem and washes our hands of it to describe everyone in small boats as genuine refugees, and anyone who does not say that is seen as unkind. It also avoids the problem when you do not have an honest conversation about economic migration. It is equally cowardly and indulging in moral grandstanding to imply that “evil Tories” have turned into Nazis because they are actually putting forward a policy when no one knows what other policy to put forward. This does not help improve the level of debate about a very difficult situation.

Finally, and briefly, I support Motion D1, on the right to work, because it is ridiculous that we do not encourage people to have the right to work. In this instance, when the Government say that all claims should be settled within six months, I say to them: if they could get all the claims of the tens of thousands of people settled in a matter of months, we might not have a crisis where people say, “Bring in the Rwanda situation”. The claims go on and on for years and no one really trusts the processes to be done efficiently by Home Office civil servants in the background—no disrespect intended—so people sit around unproductively for years. For those who think that this would mean that they might undermine the wages and salaries of British citizens and workers, which is always a concern, let me tell noble Lords that, when they are sitting around for months and years, most are working but they are just working on the black market. That is perfectly legitimate because we will not let them work responsibly. Alternatively, if they are not working, they are sitting around doing nothing for years and years. That is not a very positive contribution to the UK, even if you are going to ask them to leave after their asylum status has been assessed eventually. I urge the Government, in this instance, to reconsider.

Photo of Lord Kirkhope of Harrogate Lord Kirkhope of Harrogate Conservative

My Lords, I feel it necessary to say a few words because I was the Member responsible for bringing the amendments on offshoring to the House’s attention. I do not intend to make another Second Reading speech, because this not Second Reading. I do not intend to repeat the speech I gave when I introduced amendments in Committee. I am still opposed to the whole question of offshoring, particularly to Rwanda, for the reasons I have already given. I believe that it is inappropriate, legally dubious and very expensive, and I do not believe that it will have the effect, as is argued, of deterring the traffickers who should be dealt with in a harsh manner.

The other end of this place has twice now made it very clear that it does not support the wisdom that has come from this House. There is a constitutional issue here. Ping-pong is what it is; I believe that the will of the other place will prevail. As we have argued so forcefully, the responsibility for these actions must be laid squarely now on the shoulders of our friends in the other place—the Conservative MPs in particular and the Government—and, on that basis, I rest my position.

Photo of Lord Green of Deddington Lord Green of Deddington Crossbench

I shall be extremely brief, noble Lords will be glad to hear. I should just like to draw attention to the state of public opinion, which is amazed by people arriving on our beaches in their tens of thousands. It was 30,000 last year; it could be double that this year. The public do not like it and they are right. It is very bad for the Government’s reputation. It is not so good for the Opposition either, in that the political system is failing to deal with an obviously very serious question.

The only way to deal with it is to break the business model of the traffickers. The Rwanda proposal is very far from ideal but for the present we have no alternative. I have to say, therefore, that it has my reluctant support.

Photo of Lord Cormack Lord Cormack Conservative

My Lords, I just want to make three very brief points. First, I strongly agree with my noble friend Lord Kirkhope that ping-pong should not be an endless game. We should focus today on the two things which are recent and have come to our attention since the Bill came before us.

The first is dealt with by Amendment D1, tabled by the noble Baroness, Lady Lister of Burtersett, and supported by my noble friend Lady Stroud. The Government have very rightly said that Ukrainian refugees should be able to work when they get here—so they should. We do not need a different policy for other asylum seekers—a point made very eloquently by my noble friend Lady Stroud. I think we can focus on that today.

The other thing, of course, concerns Rwanda, where I strongly sympathise with the points made by my noble friend Lord Hailsham. Whatever the merits or otherwise of the policy—and I strongly sympathise with the brief but trenchant intervention of Theresa May in the other place—it ought to be for Parliament to make the ultimate decision. To my mind, the right reverend Prelate’s amendment is far too long; my noble friend Lord Hailsham’s is straight and to the point. If we are to deport asylum seekers from this country to a third country, it should be with the approbation of both Houses. I hope this House will not indulge in too many votes tonight because we have to observe, as my noble friend Lord Kirkhope said, the constitutional conventions and proprieties which mean that ping-pong should not be an endless game.

Photo of Lord Dubs Lord Dubs Labour

My Lords, I support the bulk of these amendments, particularly the Motion moved by my noble friend Lady Chakrabarti. I want to make some very brief comments because this is not a Second Reading debate, thank God.

I think the Minister said that the practice of claiming asylum in the first safe country one reaches is accepted Europe-wide. I would challenge that because the bulk of the refugees who have come to Europe have come through safe countries, whether they are the 1 million Syrians who went to Germany or the Ukrainians who are on their way to this country and elsewhere. That proposition, I am afraid, does not stand.

One theme that I have noticed in the debate this afternoon is the question of the validity of the 1951 Geneva convention. The Government, while accepting the convention in theory, seem to be challenging it all the way along the line. When the United Nations High Commissioner for Refugees makes a statement about the Geneva convention, we should be very careful before we challenge it, because who else has the international authority but the keeper of that convention: namely, UNHCR? When the UNHCR is critical of what is happening as regards Rwanda, we should listen to it.

I do not want to open up the Rwanda argument, except to say this: it is such an important point of principle that I should like the Minister’s assurance that no decision will be made to remove somebody to Rwanda until both Houses of Parliament have had a proper chance to debate it. We have not had that chance; we have slipped the points in at the tail of some other question or some other point. It is too important a principle, it is completely new for this country and we need to debate it.

I will refer very briefly to Motion G on family reunion, not because there is an amendment down—we have debated it several times—but because I want to be on the record in saying this. The Government say:

“Because it will alter the financial arrangements made by the Commons, and the Commons do not offer any further reason, trusting that the Reason may be deemed sufficient.”

That seems to me offensive. Surely, the principle of financial privilege is one that the Government often waive. They usually waive it when there is an important issue at stake. To dismiss an argument about human rights and family reunion on those grounds belittles the whole debate that we have had here on many occasions.

The Minister said that she did not like Amendment 10B because it would not be fair. What could be more important than the right to family reunion? Whether it is somebody who has come across the Channel on a dinghy or whatever, if they have come here and have an asylum claim that should be heard and they want to join their family here, surely that is absolutely fundamental. How can we say no to that proposition?

I think we should debate Rwanda because, if a young man comes over from Calais on a boat, are we to say to him, “You’ve got a family in Birmingham but, no, you can’t go to them, off you go to Rwanda, where you will have to stay for the rest of your life, if you make a successful asylum claim”? That is why we should have a proper debate on Rwanda.

I support the amendments and I hope we will make the Commons think again.

Photo of Lord McColl of Dulwich Lord McColl of Dulwich Conservative 5:30 pm, 26th April 2022

My Lords, I will speak to Amendment 26B. This House has been united in agreeing that improvements are needed to Part 5 of the Bill. The human trafficking sector has made that very clear in briefings to your Lordships. I have kept my endeavours to the support for victims who have been through the national referral mechanism and, by the Government’s own processes, have been confirmed as victims of modern slavery—as people who, by definition, have been through exploitation and trauma.

I am grateful to the Government for their commitment that victims in England and Wales will receive 12 months of tailored support. I am nevertheless extremely disappointed that the Government did not cross the next hurdle for victims and place this commitment in statute.

Last week, the Minister in the other place said that the Government were “unshakeable” in their position on my amendment. It is with regret that I have decided not to insist again—but I shall continue to be unshakeable myself in bringing this matter before your Lordships and the Government. I hope that the Minister will tell us the timetable to produce the guidance to which the Government have committed for confirmed victims. If not, will she give me details today; and, if not, write to me and place a copy in the Library?

I want to put on the record that I am grateful to all those in this House and beyond who have supported me during the passage of the Bill and voted for victims of modern slavery, and I pay tribute to my noble friend Lady Williams for all the help she has given me; I am most grateful.

Before I finish, I also want to raise several questions which fall within the scope of Amendments 53B and 53D. I understand the Government’s need to control immigration and, in my work on modern slavery, I am clearly opposed to organised crime. I understand why the Government have decided to seek a deterrent to those crossing the Channel, but I am extremely concerned that modern slavery victims who seek asylum are the subject of paragraph 14 of the Government’s memorandum of understanding with Rwanda.

We have spent months debating the care and identification of victims of trafficking, and it seems reasonable to assume that the UK is where that identification and care will occur. Please will the Minister set out the Government’s intention on identification and care of victims of modern slavery under the agreement with Rwanda, and in which country identification and care will occur?

Photo of Lord Hacking Lord Hacking Labour

My Lords, I have listened to a debate of extremely strong argument and extreme persuasion, but I think it is now time that we got on with the task of sending back provisions of this Bill to the other place for it to reconsider. It is very touching for me to stand up for a moment here, because it is the 50th anniversary—exactly, to the day—of my maiden speech in this House.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

I have been made anxious by the intervention of the noble Lord, Lord Pannick, in this debate. I have to say that I do not think it is for me to decide whether this is in accordance with the law or not. The Law Officer of the Crown is the Attorney-General, and my understanding is that the Attorney-General has supported the Bill. Therefore, one can take it that her opinion is that it is lawful.

After all, lawyers sometimes disagree, and I am not prepared to put myself in the place of the Attorney-General of this Government. A very distinguished lady is in that office. Therefore, it is right for us to say that, so far as we are concerned, the Government have the advice of the appropriate Law Officer. It is also important that, if necessary, the Attorney-General is the adviser to this House. Therefore, it would be very difficult for us—or at least for me—to proceed on the assumption that this is unlawful. I of course understand the arguments about this, but the ultimate conclusion is that of the Attorney-General, and that, in my view, is why the Ministers in the other place asserted so strongly that this was lawful.

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

My Lords, contrary to what the noble and learned Lord, Lord Mackay of Clashfern, has just said, I accept that the Attorney-General is a senior Law Officer. But she is also a member of the Government and, as far as I am concerned, in relation to Motions B and B1, it is vital that compliance of domestic legislation with the UK’s international obligations—in this case, the 1951 refugee convention—is decided by the courts. If a precedent is set that a UK Government can reinterpret its international obligations by passing domestic legislation, where does it end? This Bill would remove refugees’ fundamental human rights, as set out in an international convention to which the UK is a signatory, unless we support Motion B1.

Motion C1 applies the same principle. As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, the UK courts have held time after time that an asylum seeker’s temporary stop in another country on their way to the UK does not invalidate their claim for asylum in the UK, nor does a delay in presenting themselves to the authorities if they have good cause.

Motion C1 also, importantly, restates the provision in the Asylum and Immigration Appeals Act 1993 that the Immigration Rules must not result in a breach of the refugee convention. It also states the importance of the best interests of the child and the right to family unity, and we support it.

On Motions D and D1, we have long campaigned for the right of asylum seekers to work, and we continue to do so. We do not believe that any so-called pull factor, as the Government claim the right to work to be, is as strong or as impactful as the push factors that force asylum seekers to seek sanctuary in another country—or is even a consideration compared to them. This is even more obviously the case if the right to work is the same or less generous than in other countries, as this amendment proposes. As the noble Baroness, Lady Stroud, said, we wholeheartedly support it.

The issues in Motion E are arguably covered by Motion C1.

Motions F, F1 and F2 have been brought into stark relief by the Government’s announcement of the signing of a memorandum of understanding with the Government of Rwanda. An article in the Times yesterday, for which a considerable number of asylum seekers in northern France were spoken to, proves what the Home Office’s own civil servants have told the Home Secretary: that outsourcing, or offshoring, and the threat of permanent removal of asylum seekers to Rwanda will not deter channel crossings. That is what asylum seekers in northern France are saying.

The outrage of this House at these proposals was amply demonstrated yesterday, albeit unfairly directed at the Minister personally, in response to the Private Notice Question on the Rwanda deal. The Minister claimed that removal to places such as Rwanda had been legally possible for years. Can the Minister clarify whether offshoring is legally possible only if the Home Secretary certifies that a claim is without merit and that, even then, the claim can continue to be pursued from overseas? Is it right that there is no provision for a successful claimant of refugee status to be permanently excluded from the UK under current legislation?

The Minister talked about the cost of the asylum system being approximately £1.5 billion a year. Surely that is due mainly to the inefficiency and ineffectiveness of the Home Office, which has led to record levels of outstanding claims, despite the fact that the number of asylum claims is less than half of what it was a decade or so ago.

The Minister also said that noble Lords should read the memorandum of understanding. Some of us have. There is a section in it requiring Rwanda to provide appropriate support to those removed by the UK who are victims of modern slavery. Can the Minister confirm that the Government accept that victims of modern slavery will also be removed to Rwanda? Otherwise, why is that section contained in the MoU?

We will support anything that prevents this immoral and senseless government proposal being put into practice. If either the right reverend Prelate or the noble Viscount, Lord Hailsham, divide the House, we will support them.

On Motion G, as the Government have accepted in relation to Ukraine, family reunion is an important and effective means of providing sanctuary to asylum seekers, and we continue to support family reunion whenever and wherever we can.

On Motions H and H1, the Ukrainian refugee crisis has demonstrated how ill prepared the UK is and how uncaring the UK Government are in insisting on visas for dealing with the resettlement of refugees, compared with the generosity of the British people in offering to open up their homes. Setting a target and then gearing up to meet it is a sensible and pragmatic way of dealing with the issue, informed by local authorities.

On Motions J and J1, as with the issues concerning the criminalisation of those genuinely rescuing migrants drowning in the channel, the Government’s overzealous approach to criminalise anyone seeking asylum who has not arrived in the UK through the vanishingly small opportunities provided by government resettlement schemes is likely to have a chilling effect on those affected. It is simply not good enough for the Government to say that only in the most egregious cases will people be prosecuted. It will have a chilling effect on people who have no other choice but to claim asylum once they arrive in the UK.

Of course, those who are in breach of a deportation order or who have been excluded on national security grounds will know that they are committing a criminal offence if they enter the UK, as Motion J1 provides for, but the legislation, as in the case of Motion K1, is too widely drawn. We support Motion J1.

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords) 5:45 pm, 26th April 2022

My Lords, I too will try to be brief, which does not always come naturally to me. I start by congratulating my noble friend Lord Hacking on his 50th Lords birthday, or whatever the equivalent is; that is absolutely amazing.

This is a very serious group of amendments, and I will try to cut to the nub on each of them. I take the point made very well by the noble Viscount, Lord Hailsham, about how sometimes in this place—I have limited experience here compared to many other noble Lords—the policy with respect to the Bill changes as we read our morning newspapers. The Government have completely retreated on the pushback policy, which we see withdrawn from the Bill. There was a debate on whether it needed to be part of the Bill; we could not get a clear answer on that. I said that the MoD and the Home Office were at loggerheads, the Government told us that they were not, and then the MoD refused to do something, so the Government had to withdraw it before it gets to court. Is it any wonder that we say to the Commons, “Do you know what you’re doing?” and “You need to think again”?

I say to noble Lords, as I have to many people, that if the Commons had debated the 12 amendments and votes that went from this place for longer than an hour before they voted, we may have thought that this had been considered properly. While it is the constitutional right of this place to revise legislation and to say to the Commons to think again, we may have accepted that they had done that. However, in this case, as the House of Lords we are perfectly entitled to say to the Commons, “You spent an hour on it a couple of days ago; you can spend another hour on it this evening to think about whether you’ve got it right.”

Of course, at the end of the day, the elected Chamber has the right to get its way, but so has this place the right to say to the Commons, “Do you really think you’ve got it right?” On serious matters, when we are talking about asylum and refugee status, we have the right to say to the Commons, as each and every one of these amendments does, “Are you trebly or doubly sure that you’ve got it right?”

Noble Lords:

Hear, hear!

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

I turned around then because thought I was back in the Commons being heckled. That is why these amendments are so important.

Very briefly, on Motion C1, in the name of the noble Lord, Lord Kerr, and my Motion J1, which essentially deal with the same thing—the offence of arrival and the differential treatment—the Government and the Commons have failed to answer how on earth anybody can claim asylum in this country if they arrive here through an irregular route. They cannot; they are automatically assumed to be illegal. We are saying to the Government: surely that cannot be right.

Nobody wants unlimited irregular migration, but without Motion C1 or Motion J1 we are essentially saying in this Bill that Uighurs, Christians fleeing persecution and people from Ukraine or any of the hot spots of the world who come to this country are criminalised and are second-class refugees. Is that what we really want? On something as fundamental as that, we are perfectly entitled to turn around to the Government and ask, “Are you sure you’ve got that right? Is that what you really want?”. If in the end they say yes, as I suspect they will, of course we will have reluctantly to give way, but do we really want to say that a Ukrainian being bombed and fleeing on 3 January or whenever the illegal Russian invasion started—it applies from 1 January—who arrives in this country without a visa, a passport and the proper papers is illegal and a second-class refugee? Is that right? All the amendments from the noble Lord, Lord Kerr, and me seek to do is to ask, “Do you not need to think again on that?”. I suggest that they do.

The right reverend Prelate’s amendment essentially deals with safe and legal routes and the importance of what we have seen with respect to Rwanda. We saw in the Private Notice Question yesterday and the short remarks made today that there should have been a full and fundamental debate about Rwanda and the rights and wrongs of that policy. Rather than seeking workable safe return agreements with our closest neighbours, which we have successfully used in the past, the Government have instead spent millions of pounds press-releasing a deal that the Civil Service could not even sign off as being value for money. That is what we are being asked to accept and what Motion F1 on offshoring, in the name of the right reverend Prelate, seeks to deal with.

In closing, so that people get the gist that I support the amendments—I think we are right in sending a few back, if we and other noble Lords are lucky enough to get a majority in this House—I will speak to my noble friend Lady Chakrabarti’s amendment. The noble Lord, Lord Pannick, and some other noble Lords have supported Motion B1. What I am going to read is so important; it speaks for itself. The Government say the Bill conforms to the refugee convention. Motion B1 is saying, “Let’s put that in the Bill, then”. Why is this so important? It is because this country flies in the face of what the UNHCR said. I will read the paragraph. I hope noble Lords will bear with me while I read this, then I will finish. The UNHCR said:

“The Nationality and Borders Bill follows almost to the letter the Government’s New Plan for Immigration Policy Statement, issued on 24 March 2021, in some cases adding further restrictions on the right to claim asylum and on the rights of refugees. UNHCR must therefore regretfully reiterate its considered view that the Bill is fundamentally at odds with the Government’s avowed commitment to upholding the United Kingdom’s international obligations under the Refugee Convention and with the country’s longstanding role as a global champion for the refugee cause.”

That is why Motion B1 is so important, why the noble Lord, Lord Pannick, and other noble Lords have made the remarks they have, and why my noble friend Lady Chakrabarti has moved this Motion. The UNHCR has said that our global reputation is at risk. That is why we should ask the House of Commons to think again, and we are perfectly entitled to do so.

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

My Lords, I join other noble Lords in wishing the noble Lord, Lord Hacking, a very happy 50th anniversary of his maiden speech. I do not think I will be here on the 50th anniversary of my maiden speech; my family will not let me.

Yes, people have taken longer in this debate than they might have. It is an incredibly important Bill, so I do not accuse my noble friend Lord Horam of being long and rambling. As is the convention of your Lordships’ House, everyone has a right to have their say. In my time I have listened to many a long and rambling speech and managed to keep a smile on my face, so I think we all should.

I will first talk to the points made by the noble Baroness, Lady Lister, supported by my noble friend Lady Stroud, on the cost of the right-to-work amendment. We have carefully considered all the evidence put forward on the issue, and the financial assumptions made by the Lift the Ban report are not supported by our findings. They are optimistic and do not reflect the nuanced reality of asylum seeker employment. To the extent that there would be any savings at all—that is doubtful—they are likely, in all cases, to come with a loss to the Home Office stemming from operating a more relaxed policy. There are a number of operational challenges, but the main ones relate to the likely need for many asylum seekers either to transition in and out of support while working, due to the nature of low-paid transitory jobs, or to continue to be supported while working. This would mean that savings on support payments would be extremely limited, while setting up and maintaining a system to calculate adjustments to such payments as wages rise and fall, week to week and month to month, would be complex and costly.

As a result, the Government’s view is that our resources would be better deployed in reforming the end-to-end asylum system and reducing unfounded intake, thereby resulting in faster decisions and genuine refugees being able to work and integrate more quickly. My noble friend and I agree on the ends, just not on the means to get there.

I turn next to the speech made by the right reverend Prelate the Bishop of Manchester. I repeat that the UK is a global leader in resettlement. We have provided a route to resettlement for more than 100,000 people.

On the refugee convention, as my noble and learned friend Lord Mackay of Clashfern said, the Attorney-General has signed off this Bill. We maintain that our policy complies fully with our international obligations and is a good faith interpretation in line with the Vienna convention. As the noble Lord, Lord Kerr, said, the Vienna convention is not intended to be a free-for-all; there are parameters in it. Where the terms of the refugee convention are open to some interpretation, there may of course be more than one good faith, compatible interpretation. I notice that the noble Lord is shaking his head—I never expected him to agree with me—but that is our view. My noble friend Lord Wolfson has set out at great length his view on the refugee convention.

The noble Lord, Lord Pannick, challenges me to make the statement that we do not think it complies but are doing it anyway; he will not be surprised that I am not going to do that. The noble Lord, Lord Paddick, said it is for the courts to decide our interpretation. No, it is for Parliament.

In response to the speech made by my noble friend Lord Hailsham, supported by my noble friend Lord Cormack, I reiterate that these amendments would go significantly beyond existing legislation, which has of course been in place for decades.

The noble Lord, Lord Dubs, asked me to confirm that there will be a chance to debate the Rwanda partnership in both Houses before any individual is removed. There has already been significant debate on the partnership in a Statement by the Home Secretary, in Commons Questions, in a PNQ and again in this House today. I know there will be many more opportunities to debate this.

The noble Lord, Lord Dubs, also asked about family reunion. As I have said to him on many occasions, those with family links in the UK who want to be considered for entry to the UK should seek to do so via legal and safe routes. No one should put their life into the hands of criminals by making dangerous and irregular journeys. I assure the noble Lord that access to family reunion will be available to all group 1 and group 2 refugees where a refusal would breach their Article 8 rights, in line with our international obligations.

My noble friend Lord McColl and the noble Lord, Lord Paddick, asked how the Rwanda partnership would apply to victims of modern slavery. Decisions on the partnership will be taken on a case-by-case basis and nobody will be relocated if it is unsafe or inappropriate for them. Everyone considered for relocations will be screened, interviewed and have access to legal advice. The provision in the MoU ensures that Rwanda supports everyone who is transferred. Again, I reassure noble Lords that we will only ever act in line with our commitments under our international legal obligations, including those that pertain to potential and confirmed victims of modern slavery.

I will be clear: this Bill and our new plan for immigration deliver what the British people want and are what the Government intend to deliver. The Bill will make our immigration system fairer. It will protect and support those in genuine need and deter illegal entry, which will help to smash the terrible and, frankly, life-endangering business model of criminals.

I note that the other place has expressed what the British people want with substantial majorities against these provisions. Again going back to the leader of the Opposition, on Sunday, he shared our view that the best place for an asylum claim to be made is in the country nearest to where they are fleeing from. I encourage noble Lords to hear the will of the British people, the elected House and the leaders of both parties, in recognising the need to discourage people from making dangerous journeys.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour 6:00 pm, 26th April 2022

My Lords, I am grateful to all noble Lords without exception, and especially to the Minister for her characteristic calm and courtesy, if not for the content of some of her message. She had one substantive argument against Motion B1, which was her constitutional objection that, somehow, the courts would trump the will of Parliament if we put the Government’s commitment to this legislation honouring the refugee convention on the face of the Bill.

With all due respect, not least to the noble Baroness and her hard-working advisers, if there was anything in that argument, it would have been better addressed to the previous iterations of my amendment. This time, the amendment on the Marshalled List says that this legislation

“must be read and given effect”, subject to the refugee convention,

“So far as it is possible to do so”.

If a provision of this Bill is found to be so clearly incompatible with the refugee convention, the court or tribunal would have to respect the will of Parliament and simply make a declaration to that effect. With respect, I think that constitutional balance point has been pre-empted by the new draft of this amendment. That is what we do for the ECHR. The sentiment of the short remarks of the Minister in the other place seem to be that we honour both the ECHR and the refugee convention. It seems illogical, in legislation that is for refugees, not to put those two matters on the same statutory footing.

Further, in her earlier remarks, the noble Baroness said that rules that are made under the 1993 legislation cannot be made in a way that is incompatible with the refugee convention. So rules under the 1993 Act would be subject to refugee convention protection, but acts of discretion by individual prosecutors, immigration officers or the Home Secretary under this legislation would not be subject to the same protection. I thank the noble Lord, Lord Horam, for his significant assistance with that argument, because he referred to this as “enabling” legislation. Whether noble Lords agree with that particular adjective, he is right that there are many discretions in this part. My modest amendment would ensure that these discretions, where possible, would have to be exercised in a way that is compatible with the refugee convention. If it is not possible to do so, the language cannot be interpreted out of existence by the courts under the new draft. I am grateful to the noble Lord, Lord Horam, for that.

Finally, refugees and asylum seekers did not feature significantly in the Conservative manifesto of 2019, but it said this:

“We will continue to grant asylum and support to refugees fleeing persecution, with the ultimate aim of helping them to return home if it is safe to do so.”

“We will ensure no matter where in the world you or your family come from, your rights will be respected and you will be treated with fairness and dignity.”

That was the manifesto commitment.

In a jurisdiction that has no entrenched Bill of Rights or written constitution, no Supreme Court or constitutional court with strike-down powers, this place, your Lordships’ House, has a significant role to play when fundamental and constitutional rights are at stake, and where there is no conflict with the Government’s manifesto commitments or their repeated and expressly stated policy. Motion B1 honours all of that: the manifesto promise and the policy stated expressly and repeatedly by Ministers in both Houses of Parliament. I ask noble Lords to agree it.

Ayes 244, Noes 219.

Division number 1 Nationality and Borders Bill - Commons Amendments — Motion B1 (as an amendment to Motion B)

Aye: 244 Members of the House of Lords

No: 219 Members of the House of Lords

Ayes: A-Z by last name

Nos: A-Z by last name

Motion B1 agreed.