My Lords, I propose that Clause 5, Schedule 1 and Clause 6 should not stand part of the Bill. I appreciate the support of the noble Baroness, Lady Chakrabarti, on this. Clause 5 relates to the removal of a person, as the Minister said on Monday, “swiftly” after they arrive in the UK or, as he put it, “shortly” after their 18th birthday. But Clause 5 actually says
“as soon as is reasonably practicable”.
Without the regulatory impact assessment, we in Parliament cannot judge what is a “reasonably practicable” period. What we do know—the Ministers know this all too well because they are lawyers—is that case law determines that
“as soon as is reasonably practicable” cannot be considered as “as soon as possible” or “as soon as feasible”, although the Minister wanted us to think that it does. I guess the Bill would be a deterrent if one assumed that no lawyers for anyone would read it. Of course, there is no baseline estimate of the amount of accommodation and staffing or other logistical requirements that will be needed. We need central government estimates on costs, as we debated on Monday.
As we start today it is worth reflecting on the Minister’s comments in Committee on Monday as to who is included as a person—or “P”. As we found, “P” includes a young woman trafficked to the UK—potentially via multiple trafficking handlers, blackmailed and threatened, most commonly with threats of rape or family retribution—for criminal sexual or labour exploitation.
Home Office data shows the number of irregular arrivals of women since 2018 who received a positive referral to the national referral mechanism was 520. Those 520 women had been criminally exploited, and now they would be imprisoned and deported to a strange third country and, as the Minister confirmed to me on Monday, with no statutory duty for resettlement, readmission or support. Of those women, 73 were 17 and under. Last year, 13 girls came from countries to which we cannot return them. So those sexually exploited girls are now due to be detained and possibly sent to Rwanda. Last year, 13 girls were trafficked for exploitation in the UK, and the Government would now no longer allow their referral for protection. Well, not in my name—and nor should be in the name of any Member of this Parliament.
The Minister told us on Monday that they were part of the gaming of the system. He repeated to me on Monday the false assertion that
“the numbers of people claiming to have been modern slaves in this scenario indicates that there is extensive abuse”.
He also said that
“the simple reality, I am afraid, is that our modern slavery protections are being abused”.
These are misleading talking points from the Minister, and from Suella Braverman, which led, in December, to a formal complaint from Ed Humpherson, the director-general for regulation in the Office for Statistics Regulation, the formal watchdog. In response to those assertions, he investigated the data and wrote to the Home Office on
“However, policy officials in the department could not point to any specific evidence for this when we enquired. What is more, the proportion of referrals deemed by the Home Office to be genuine cases of modern slavery in its ‘conclusive grounds decisions’ has risen year by year from 58 per cent in 2016 to 91 per cent in 2021, which does not suggest in itself that gaming is a growing problem”.
“I would be grateful if you could raise this matter with communications and policy colleagues, encouraging them to ensure that claims in public statements are clear on whether they are sourced from published statistics or from other reliable evidence. This will avoid the risk of misleading people to believe that the statistics say something that they do not”.
So the Minister came to us in Committee in the British Parliament and misled us to believe that the statistics say something that they do not.
What makes that worse is that, in January, Home Office officials accepted the rebuke. Professor Jennifer Rubin, the Home Office Chief Scientific Adviser, replied to the regulator:
“I am glad that you highlighted this issue … The Deputy Director responsible for the publication of the NRM statistics has recently written to the policy and communications Deputy Directors to encourage them to ensure claims made in public statements are sourced from published statistics or other reliable evidence”.
So I hope that, on subsequent days in Committee and when we get to Report, the politicians in the Home Office will also do what the officials have been told to do: not seek to mislead us but use information based on the data.
The data the Minister cited on Monday was also partial. He told me:
“In 2022, there were around 17,000 referrals to the NRM—the highest annual number to date and a 33% increase on 2021”.—[Official Report, 5/6/23; cols. 1199-1203.]
That is correct, but what did he not say? He did not say that, according to the latest Home Office data that he cited, 49% of all referrals—half—are for exploitation in the UK. That has nothing to do with overseas or from small boats; 41% are for exploitation overseas. The biggest increase that contributed to his statistics was child exploitation, growing from 498 to 4,410 in the UK. I ask the Minister: are these abused children in the UK gaming the system?
Half of all referrals came from central government—his own department—and this was a 79% increase compared to 2021. If it were not bad enough that the Minister suggested it was the arrivees gaming to a much higher extent, he is not even accurately relaying the Home Office data. But it is even worse than that. The Home Office Analysis of Modern Slavery NRM Referrals from Asylum, Small Boats and Detention Cohorts was published on
“From January to September 2022, people arriving via small boats were no more likely to be referred into the NRM (about 7%) than those referred from the asylum population (also about 7%)”, so there is no particular issue. The Home Office went on, in key finding 6:
“This analysis demonstrates that the behaviour of asylum claimants and those arriving on small boats … does not appear to be drastically changing (demonstrated by the consistency in the proportion of those populations who are referred to the NRM)”.
The Home Office’s own statistics, published on
“does not appear to be drastically changing”, but the Minister told us on Monday that it was. I hope he has an opportunity to clarify the record today, at the soonest opportunity in Committee, and to refer to the Home Office statistics published in May, not a political assertion. Maybe he thinks we do not read these things or care what Ministers say. Well, I read the data and I care. Clearly, Home Office officials are with me; that is why they cared when they accepted the official rebuke from the regulator in January.
A system not being gamed, assertions not backed up by data, and partial use of data to seek to mislead us—who is accountable for this? It is not a Minister, but it is a 17 year-old Eritrean girl trafficked for sexual exploitation in our country, where she will now not be referred for any protection and instead detained on her 18th birthday and shipped off to somewhere we do not know where and nor will she. According to the Government, it could be one of the 57 countries “safe” in Schedule 1. But we also demonstrated on Monday that, regrettably, for many of what the Government had said were safe countries, the Justice Minister, the noble and learned Lord, Lord Bellamy, in the conscientious way in which he responded to the Committee, and I respect him for doing so, said that they are not, but that a suspensive claim can be brought to the Home Secretary—not directly to the tribunal but to the Home Secretary—a mechanism that renders the whole point of the schedule entirely otiose.
The 2002 Act defined the word “safe” for the purposes of an individual review of a person. Now the Government think just that stating the country will suffice, but FCDO advice for seven on the list of 57 includes significant red areas and advice against all travel, and for others we showed through Home Office country notes that there is also widespread risk of persecution on the basis of personal characteristics. I asked what would prevent someone being returned to a third country considered safe but then that person being moved to an unsafe country or region. The noble and learned Lord, Lord Bellamy, gave a straightforward answer:
“I suppose that the direct answer is that one would have to negotiate an appropriate agreement with the country concerned”.—[Official Report, 5/6/23; col. 1229.]
I agree, but remember that the noble Lord, Lord Murray, earlier on Monday dismissed the need for such agreements to be in place. He said that
“Nothing in the Bill makes removal dependent on the receiving country having an effective asylum procedure, or agreeing to admit a person to” such a procedure. Clause 5 sets out only two conditions for removal to a third country under the Bill but is silent on there being an effective system.
As an EU member state, the UK participated in 14 readmission agreements. The Minister said to us that the UK is party to 16, but I have not been able to find a list of those and nor has the House of Lords Library, so I would be grateful if he would provide a link to Members of the Committee of all those 16, plus the new ones which have been scrutinised by the International Agreements Committee of this House. As of May this year, we have new agreements with Albania, India, Nigeria and Pakistan, but not all those countries are considered safe in the schedule, so what is the interaction between those areas where the Minister has said we have agreements and those the schedule alleges are safe countries?
The Explanatory Notes are grossly misleading. Paragraph 1 states categorically that someone will be
“promptly removed to their home country or to a safe third country to have any asylum claim processed”.
This is repeated in paragraphs 5 and 15, in relation to their humanitarian or protection claims being processed. However, nothing in the Bill that the Explanatory Notes purport to explain provides for the processing in a country with which we have no agreement. Paragraph 3a) of the European Convention on Human Rights memorandum from the Government is equally misleading. It says that people will be removed to
“a safe third country for consideration of any asylum claims”.
Nothing in the Bill guarantees the process of their claims and, as the Minister, the noble and learned Lord, Lord Bellamy, said—with whom the Minister, the noble Lord, Lord Murray, disagreed—one would have to negotiate an appropriate agreement with the country concerned. The schedule fell apart when the noble and learned Lord, Lord Bellamy, replied to my noble friend Lord Scriven:
“In general terms, the Government’s view is that it is not desirable to enshrine in statute descriptions of which countries are safe or not, or of particular groups of individuals or those with protected characteristics”.—[Official Report, 5/6/23; col. 1229.]
That is exactly what the Government have put in Schedule 1 and Clause 6. At least I am not the only one who believes that the Bill, nor this schedule, nor these two clauses, are desirable. The Minister responsible agrees also, and I hope that he will take them out.
My Lords, I support the intention expressed by the noble Lord, Lord Purvis, to oppose the question that Clause 5 stand part of the Bill.
Clause 5(1) seeks to put into effect the removal of any person who arrives in the UK other than through a safe route even though, as we have already debated at length, safe routes are virtually non-existent for the vast majority of people coming to this country from Afghanistan, Sudan or Eritrea, for example.
Amendments 27 and 30, tabled by the noble Baroness, Lady Hamwee, dealt with two of my major concerns about Clause 5, but there are other concerns. Amendments already tabled and some of those debated seek to protect victims of modern slavery and trafficking, as well as children. If this House approves those amendments, which I expect we shall, Clause 5 would contradict them. I will speak as briefly as I can. For example, Clause 5(1)(a) requires that the Secretary of State must ensure the person is removed, as the noble Lord, Lord Purvis, has said,
“as soon as is reasonably practicable after the person’s entry” to the UK. Subsection (4) restricts that requirement if the person has made a protection or human rights claim, but only if the Secretary of State considers that there are exceptional circumstances which prevent the person’s removal. Newly arrived people with no knowledge of the language or systems of the UK would need assistance for any such claim, and the Bill restricts access to assistance. Under Clause 5, therefore, a person is likely to be removed before they have had a chance to make a protection or human rights claim. Also, as the noble Baroness, Lady Hamwee, has argued, it should not be possible for the Secretary of State to counter a protection or human rights claim, if one has been made, with a subjective power to determine that there are not “exceptional circumstances”. The inclusion of Clause 5 in the Bill would undoubtedly enhance the risks to victims of modern slavery or trafficking and to children, along with all others seeking asylum in the UK. I hope the Minister will agree that Clause 5 should not stand part of the Bill.
First, I do not understand the rationale for the list in Schedule 1 and I would be very grateful if the Minister could explain it. It seems to me that, of the 57 countries listed, with only two do we have any form of removal agreement: Rwanda and Albania. Does it concern the Government, as it concerns me, that we are setting out a list of destinations without having any international agreement underpinning it in relation to particular countries?
Secondly, some countries among the 57 listed in Schedule 1 are not party to the refugee convention, so they are in no way bound by the same commitments on the treatment of asylum seekers that bind us. Are the Government concerned about that? I am concerned about it, and I am inclined to think that they should be.
Thirdly, it is not clear to me that all the countries of the 57 in Schedule 1 have any kind of asylum system or procedure. I am not sure that all these countries recognise the concept of asylum in law. Can the Government assure me that I am wrong, and that although some of these countries are not party to the refugee convention—that is a fact—they all have working asylum systems? If not, are the Government not concerned about that? I think we should be concerned about it.
Fourthly, we must ask the Minister to construe the language “in general”, which occurs twice in Clause 6(1). The Secretary of State may add to the list in Schedule 1 if he is satisfied that
“there is in general in” the country in question
“no serious risk of persecution”.
How are we meant to construe “in general”? I do not think it is the kind of language that should be on the statute book.
The second occurrence in the clause is that the removal of persons to a country to be added to the list is possible only if it would not “in general” contravene the human rights convention and our obligations under it. Hold on: pacta sunt servanda. It is not a question of whether “in general” there is a contravention of the human rights convention—there is or there is not. If sending somebody to one of these 57 countries would be a breach of our obligations under the human rights convention in any way, it does not matter if the Government think that “in general” it is all right. The language “in general” should not be here, both on constitutional and legal grounds and on grounds of pacta sunt servanda. If it would breach in any way our commitments under the convention—I believe it would —we should not add the territory in question to the list in Schedule 1.
My last point is also a question about how we should construe the language. Clause 6 talks not just about countries or territories that could be added but about parts of a country or territory. The noble and learned Lord on the Front Bench spoke eloquently about India when we last discussed this, and I have been thinking about what he said. If I were a serving diplomat, I do not know how I would persuade any country—particularly India, but any country—to accept an international agreement with the United Kingdom in which it accepted that parts of its country were unsafe for an asylum seeker. I do not see how any self-respecting country such as India could possibly accept an agreement including a restriction to a part of its territory where an asylum seeker might be sent. We need the Minister to explain to us how we are meant to construe, in Clause 6(1), “in general” and
“part of a country or territory”.
In my view, we cannot send people to countries that are not party to the convention and do not have an asylum system. Remember that we are sending people not to have our asylum processes carried out offshore by some other country. We will have declared these people inadmissible—they will never be allowed into our asylum process. We are going to deport them to other countries, where an application that they never made for asylum in those countries will be considered by us and by the country in question to have been made. But how can the country in question do that if it does not have a system for doing it? How should we accept that it is reasonable to require people to seek asylum somewhere else—which in my view is contrary to the convention—and to do so in a country that is not a party to the convention and has no asylum system? I put that all interrogatively—I may be wrong on all or several of those points—but the Minister needs to address them.
My Lords, I agree with the noble Lord, Lord Purvis of Tweed, in the submission that Clauses 5 and 6 and Schedule 1 should not stand part of the Bill. The reasoning becomes increasingly repetitive and circular, because these provisions are parasitic on the meat of the Bill, which is really Clause 2. That is the duty that the Secretary of State is quite deliberately taking upon herself so that it looks as if no discretion is being exercised, she must remove people and therefore the courts have no ability to supervise that judgment. That is the heart of the moral and practical problem with the Bill, so when we look at the parasitic clauses that follow on from Clause 2, we come back to that central problem.
There are so many reasons why this is wrong in both principle and practice. As always, it is a privilege to follow the noble Lord, Lord Kerr of Kinlochard, a most distinguished senior diplomat and former Permanent Under-Secretary to the Foreign and Commonwealth Office—which is important. The poor old Home Office gets lumbered with all the tough talk and rhetoric and with translating press releases into legislation, but the foreign department has to represent this country all over the world, negotiate further treaties and hold its head up in its attempt to do so. The foreign department will no doubt try to persuade people that Mr Sunak is so right and that, as I said last time, we should be the hub of AI intelligence and the world regulator, and everybody should support the idea that these treaties should be formulated here. Once upon a time, we could have said that.
If any noble Lords, particularly on the Benches opposite, want to understand the importance of the refugee convention, not as it is being flexibly interpreted by the current Government but as it was intended after the war, they might care to read the correspondence between our wartime Prime Minister and the then Archbishop of Canterbury. That correspondence between Winston Churchill and William Temple is very revealing of what the obligations of the future treaty were going to be in relation to individuated justice for refugees, which of course is the problem.
We were treated last time to good cop, bad cop by two Ministers, from the Home Office and the Ministry of Justice respectively; I will leave Members of the Committee to decide who was which. But I think that the noble Lord, Lord Purvis, was right in his rather forensic—if I may say so—examination to point out some tensions in the case as it was put by the two Ministers.
The Home Office Minister concentrated, quite rightly, on the message as we have heard it thus far: this is about deterrence; we do not want people to come here; this is all about stopping the boats. Therefore, he stressed the automaticity of Clause 2 and the absolute commitment—no ifs, ands or buts—to a duty to remove anybody who comes by an irregular route; no matter how genuine a refugee, they must be removed. When, as amendment after amendment was debated, and noble Lord after noble Lord gave the litany of heartbreaking cases of trafficked people, of gay people who should not be sent back to certain countries, and so on, the Minister from the justice department pointed up the possibility of exceptional non-suspensive claims—it will be all right, there will be the possibility of individuated justice in those cases. But, of course, both positions cannot be the case, and they were not intended to be. It was excellent advocacy, perhaps, but it does not stand up, as the noble Lord, Lord Purvis, said so clearly in his introduction to the debate.
This is the blanket treatment of claims that were always intended to be considered in a case-by-case analysis. As the noble Lord, Lord Kerr, pointed out, there are countries, including very large democracies such as India, perhaps, that are perfectly safe for some people but not at all safe for others—because they are political dissidents, because they are queer, because they are women. That is conceded by the Home Office in the schedule that lists some countries as safe only for men.
It is a diplomatic nightmare to be creating this automaticity of “These are safe countries; these are unsafe countries” and to be telegraphing it in the schedule to the Bill. The noble Lord, Lord Murray, will say, “There has been this development for some years under Governments of both stripes to have inadmissibility and presumptive safety”. It is one thing to say to your officials considering individual claims that some countries might be prima facie safe, but you still have a duty to consider the individual asylum seeker before you to determine what their story is. That was always the intention in the refugee convention and that is the obligation on signatories to it—and, I would argue, not just signatories any more because non-refoulement has become accepted as a principle of customary international law. That is what we propose to breach by this legislation.
That is how serious it is. The Bill is wrong in principle, wrong in practice and internally incoherent. Certainly, the arguments that have been put by Ministers—elegantly, charmingly, patiently, late into the night—do not hold together, and these provisions should not stand part of the Bill.
Some of those countries breach protected rights. I ask the noble and learned Lord the Minister which of the countries on the list practise female genital mutilation and do not reserve refoulement only for men? Which criminalise homosexuality? Which criminalise humanism? Noble Lords may remember the case of the president of the Humanist Association of Nigeria, who has received a life sentence.
Surely it is very odd to remove people to those countries. Does the Minister think that that conforms to our signature to the treaties of international law?
My Lords, it is a pleasure to follow the noble Baroness, Lady Whitaker. I endorse everything that has been said in the debate so far, so ably introduced by the noble Lord, Lord Purvis. I particularly want to follow on from what the noble Baroness said to the Committee about the suitability of some countries in Schedule 1 as places to which people should be returned; my noble friend Lord Kerr and the noble Baroness, Lady Chakrabarti, developed that point in their interventions earlier. I will take one example but the arguments I am going to put to the Committee could be applied to other countries on the list as well.
The country I want to talk about is Nigeria. In a later group of amendments, I have Amendment 85C in my name, which seeks to establish
“how the Secretary of State will assess Equality” provisions
“listed in Schedule 1 and the potential harm to those with protected characteristics including victims of Modern Slavery”.
However, I want to ask the Minister specifically to engage with the issue of justice in Nigeria. This is a country to which we have said it is safe to return men but not women. I argue that it is not safe to return anybody to Nigeria, given the way in which the internal factors in that country currently stand.
The seriousness of the situation was underlined by the visit of Karim Khan KC, the prosecutor for the International Criminal Court, to Nigeria in 2020. He is continuing the investigation into the war crimes and crimes against humanity perpetuated by Boko Haram and other factions—as well as the involvement, I might add, of the Nigerian security forces. That investigation began in December 2020 and continues. Whether or not the ICC will determine that a genocide or crimes against humanity are being perpetrated against the religious minorities in the north of Nigeria lies in the future, but the evidence of why this is a hostile environment in which people face outright persecution is overwhelming.
Simply consider the role of what are sometimes euphemistically called “bandit groups”. They have killed, abducted, forcibly converted and displaced vast numbers of people, many of whom end up in small boats. According to government figures, 4,983 women were widowed; 25,000 children were orphaned; and 190,000 people were displaced between 2011 and 2019, with more 3 billion naira paid to bandits as ransom for 3,672 individuals who had been abducted.
In one incident last year, IS West Africa killed eight people and kidnapped 72 people on a Kaduna-bound train from Abuja while, in 2022, Boko Haram killed at least 60 people from the community of Rann, in Borno State, and killed more than 15 women in Gwoza, also in Borno State. In June 2022, the United Nations reported that Boko Haram and splinter factions abducted at least 211 children, recruited at least 63 children, killed or maimed at least 88 children, raped or sexually violated 53 girls and attacked at least 15 schools. In September 2022, UNESCO estimated that 20.2 million Nigerian children were out of school as a consequence.
I think particularly of the plight of Leah Sharibu, who has just turned 20. At the age of 14, on
Elsewhere in the country, secessionist forces in the south-east of Nigeria and protests by the Indigenous People of Biafra led to gunmen killing, maiming and destroying the properties of citizens in the region. Armed forces against separatists have also been involved in at least 122 extrajudicial killings. Media reports suggest that more than 287 people were killed in the south-east between January and May.
Consider other rights that we take for granted. Some 75 years ago this year the United Nations promulgated the Universal Declaration of Human Rights, Article 18 of which insists that everyone has the right to believe or not believe or change their belief. Theoretically, Nigeria is signed up to Article 18 and all the 30 articles in the UDHR. But Article 18 is honoured, as the noble Baroness, Lady Whitaker, has just reminded us, only in its breach in Nigeria, and there are no safe and legal routes for those who are subjected to persecution for their religion or belief. With a cap on total numbers, there should be a safe and legal route and no refoulement for certain categories of people.
I am particularly glad that the noble Baroness, Lady Williams, is in her place today, because this is an issue I have raised previously with her. As the Government now consider the creation of further safe and legal routes—I welcome what they have said about this—persecuted people might form part of that. If they allowed for, say, a maximum of 5,000 people per year, that would be a great step forward for many endangered people in many parts of the world.
The urgency of addressing this issue is illustrated by the case of Mubarak Bala, president of the Nigerian Humanist Association, who was sentenced to 24 years in prison for a “blasphemous” post on Facebook. He received an excessive sentence but is at least still alive to challenge it. In most cases the extremist sentiment fuelled by blasphemy laws and accusations, coupled with the impunity surrounding blasphemy-related violence, means that many of those accused never get to have their day in court and are in effect lynched, as occurred in the case of Deborah Samuel in Sokoto state. In an indication of the degree of impunity surrounding blasphemy allegations, only three men among the mob who killed her were arrested for beating her to death and her immolation. They were merely charged with “public disturbance”, as opposed to murder. Moreover, they were freed by Chief Magistrate Shuaibu Ahmad in January 2023 due to the absence of the police prosecution during the scheduled hearings.
Nigeria is one of 71 countries that criminalises blasphemy in a law introduced during the colonial era that contravenes the country’s constitution which theoretically allows for the freedoms of thought, conscience and expression that we all uphold in this House. It is also incompatible with the nation’s international obligations with regard to those Article 18 obligations that I referred to earlier. In addition, the enactment of sharia penal codes in 12 northern states effectively rendered Islam a de facto state religion in violation of Nigeria’s secular constitution, which only theoretically recognises sharia courts for non-criminal proceedings. As well as contravening constitutional stipulations, this action effectively endowed the systematic marginalisation of followers of non-majoritarian expressions of faith that has existed for decades with quasi-legality.
The Tijaniyya Sufi singer Yahaya Sharif-Aminu, whose death sentence was overturned on a technicality and following an international outcry, but who still faces a retrial and a possible death sentence, is currently petitioning the Supreme Court, challenging Nigeria’s blasphemy law and the legality and constitutionality of the Kano sharia penal code. He is not alone in facing wholly unacceptable penalties for simply expressing dissent.
Consider the denial of freedom of expression and arbitrary arrests—breaches of Article 19 of the Universal Declaration of Human Rights. For seven months there was a ban on Twitter, while the Nigerian Broadcasting Commission suspended Vision FM for criticising the Government, sanctioned four media outlets and suspended 52 broadcast stations. The Government shut down five pro-opposition media outlets.
Last November, a Kano court sentenced social media celebrities Mubarak Muhammad and Nazifi Muhammad to detention, flogging and a fine for defaming the governor. The blogger Bashiru Hameed was detained for publishing the criminal record of the Ogun state governor. Journalists Abdulrasheed Akogun and Dare Akogun were detained for WhatsApp messages that alleged corruption by the Kwara state governor. Peoples Gazette staff were arrested for a newspaper article said to “defame” the former chief of army staff, with Umaru Maradun detained for undisclosed reasons. Meanwhile, radio worker Casmir Uzomah was detained for airing an “offensive” song.
Recall that several prominent End SARS activists were obliged to flee the country in an irregular manner after surviving the Lekki toll-gate massacre in October 2020 and following a harsh crackdown. Among those who stayed, nine detained protesters were acquitted and released by a judge in Oyo state only in January 2023, and at least 30 remain in pre-trial detention across the country.
I am telling the Committee all this because we are going to send people back to Nigeria. We have said that it is a safe place for men. This cannot be right. Does anything that I have said to the Committee suggest that this is a safe country to which people should be returned? Many refugees or asylum seekers flee their countries after facing injustice, mistreatment, harsh imprisonment without due process and even threats to their lives on account of peaceful political protest or because of their religion or belief.
Nigeria is also a nation on the edge of a precipice. It represents nearly 3% of the global population in extreme poverty, with the emergence of a critical security vacuum that has resulted in citizens across the country facing terrorism or violent armed groups, and being commoditised, as abductions for ransom have unfortunately become a growth industry. The UN says that 1.4 million people are internally displaced. Over 95 million Nigerians are living in poverty, and food inflation reached 22% in July 2022.
As violence by non-state actors continues, the economic and political climate remains uncertain following the inauguration of a president whose victory remains disputed and who, in any case, belongs to the party that oversaw Nigeria’s critical decline. Observers warn of a final descent into failed statehood which in turn could spark an exodus of people legitimately in need of safety. In the absence of defined legal or regular routes for those seeking refuge in the UK who perhaps have family or other ties to the country, these people would also be denied entry. Not only does this suggests that what we categorise as a safe country does not match the reality, it illustrates why this Bill misses the point.
With over 100 million people displaced in the world, we need a strategy to tackle the root causes, not legislation which will do nothing to end the desperate journeys of people who are desperate to make better and safer lives for themselves and their families.
My Lords, I will not repeat what has already been said. I agree with most of what has been said in the preceding speeches, particularly the remarks made by my noble friend Lord Kerr about the inadequacy of Schedule 1, and all the examples that have been given, including those given very clearly by my noble friend Lord Alton, of cases which create real dangers of injustice which are plainly contrary to the international conventions to which this country subscribes. Instead, I want to obtain confirmation from the Minister of some short propositions which relate to Clause 6 of the Bill.
Clause 6 provides that the Secretary of State may amend Schedule 1 in certain circumstances. Can the Minister confirm that if a cogent application is made to the Secretary of State to amend Schedule 1 in particular ways and he refuses, that would immediately open the gate for judicial review proceedings? I foresee a menu of 57 opportunities in Schedule 1 for 57 applications for judicial review—perhaps a few fewer—being made by well-known and well-funded NGOs for amendments to be made to that schedule because of circumstances in those countries.
Further, would not the Secretary of State face considerable obstacles if such judicial review applications were made? First, there is the weakness of the standard of proof that is set by the Government for themselves—“if satisfied”, whatever that means. Secondly, in Clause 6(1)(a), which was referred to earlier, the Secretary of State can add a country or territory if satisfied that
“there is in general in that country or territory, or part, no serious risk of persecution”.
Does that not contradict certain other legal provisions which, for example, provide guarantees of safety to a group of people we discussed earlier this week—the cohort of LGBTQ+ people who might be affected?
Thirdly, Clause 6(1)(b) states:
“removal of persons to that country or territory, or part, pursuant to the duty in section 2(1) will not in general contravene the United Kingdom’s obligations”.
Is that not pathetically weak, and contradictory to other legislation? I again take the LGBTQ+ cohort as my example.
If that analysis of Clause 6(1) and Schedule 1 is not entirely coherent, surely it is enough to persuade the Government that they should really reconsider the drafting of Clause 6 and the contents of Schedule 1. If they insist on keeping Schedule 1, it should, from the start of the Bill coming into effect, reflect all the dangers in all countries in which there are dangers for certain groups of people who could not be described as people “in general”. This is ineffective, and I am sure it will put substantial fees into the hands of my learned friends, but that is not what this place should be trying to do.
My Lords, I support these amendments and the speeches that were just given. I want to make two points only. First, it is extraordinary to me that Schedule 1 shows a list of countries with which this country has no agreement. I cannot understand how one can put into primary legislation a list of countries with which the Government hope to have an agreement, when that is not yet happening.
Secondly, I spoke earlier, at greater length, about the unaccompanied child who comes to the age of 18. Your Lordships have only to think of a child of 10, and we know that some children of 10 have come through. With any luck, a child of 10 will not be kept in Home Office accommodation; he or she is likely to go into the care of a local authority under the Children Acts and will very likely be fostered. It is comparatively easy to be fostered at 10. The child would have spent eight years at an English school, would have grown into speaking English, probably forgetting his or her own language to some extent, and will be settled.
Immediately after the age of 18—subject to the Home Office’s inordinate delays in removing people, but assuming that it achieves something better in the future—he or she can be removed and will go to a country. At the moment, there is only one, unless the child is Albanian, when they would have gone back earlier. That child aged 18, just grown up, will find him or herself in a country the language of which they probably do not speak and he or she will know absolutely nothing. I hope your Lordships agree with me that that, quite simply, is cruel.
My Lords, I return to the terminology in general. I had tabled amendments in the last group on Monday night, which was a very big group. I could not find a polite way of describing drafting that I regarded as very poor. I resorted to saying that I thought it was
“not a very imaginative way to describe a situation”.
The Minister responding said that the term “in general” is
“not new: it is the test set out” in legislation of 2002. He continued:
He then said that “the individual”—and noble Lords are absolutely right to remind us that we are talking about individuals, not amorphous cohorts of people—
“would still have the opportunity to challenge their removal”.
Later in the debate, when a similar point came up again, the Minister said:
“This is going to be a matter for the judicial process—through the appeal process, the legal advice and the legal representation that these people have. If they can show serious and irreversible harm, then they will not be sent to these places”.—[Official Report, 5/6/23; cols. 1216-35.]
Having criticised the terminology in general, given that the opportunities to challenge Home Office decisions in 2002 were considerably more than are presented in the Bill, I would like a detailed understanding of the Minister’s explanation of using the processes available.
My Lords, in Committee on Monday, the noble Lord, Lord Murray, used the example of India. We need to question not just how the list has been devised but the minimum criteria the Home Office wishes to have for each country before it even starts to discuss any agreement with it.
India does not have national asylum legislation: anyone who is a non-Indian citizen is determined as a foreigner under the Registration of Foreigners Act 1939, the Foreigners Act 1946 and the Foreigners Order 1948. This legislation generally governs foreigners within the territory of India. Article 2 of the Registration of Foreigners Act defines a foreigner as
“a person who is not a citizen of India”.
The other two pieces of legislation use the same definition. The Act and the order grant the Indian Government the power to restrict the movement of foreigners and carry out compulsory medical examinations, limit foreigners’ employment opportunities, and control the ability to refuse and return foreigners to their home country. All of these contravene the UN refugee convention. Refugee status is granted, but only to certain nationals of neighbouring countries. People with certain characteristics—for example, Muslims—are predominantly excluded from being granted refugee status.
People who are foreigners in India have further challenges when seeking asylum there: because of restricted employment, they find that they do not have sustainable livelihoods; there is no reliable community support network for refugees there; and access to specialised services for certain people or groups does not exist.
Quite bluntly, I ask the Minister this: is that the kind of situation he wishes to send some of the most vulnerable people in the world into? Ultimately, for every single country listed in Schedule 1, what criteria are the Home Office using before starting any negotiation with those countries?
My Lords, many very cogent points have been made in this debate, and I will not repeat them, but I will mention one or two relating to the international dimension. I, too, believe that the use of “in general” is one of the slipperiest pieces of drafting that I have seen in a long time. I suppose that the Home Office may have been ashamed to put “in principle”, the words more often used to get out of commitments in international law than any others, but it means much the same thing. It has no place in this legislation.
Secondly, it seems an enormous hostage to fortune to put a list of countries described as “safe” into legislation tabled in March this year and which will not become statute until much later this year at the earliest. By that time, I suspect that quite a lot of things will have happened in some of the countries listed that will make them completely unsafe. I do not want to refer to individual countries, although people will be aware of what happened last week in Uganda. It is a moving agenda, and it is not wise to fix it in that way.
My third and last point is that there has been much talk of the Government concluding agreements with countries to enable us to send asylum seekers—without considering their asylum applications—to them. I imagine —and perhaps the Minister could reply on this point; it would be quite helpful if he could listen to what I am saying—that it would be useful to know whether those agreements would come before Parliament in the form that the International Agreements Committee of your Lordships’ House takes them. I take it that the answer will almost certainly be “No, they won’t, because they will be based on a memorandum of understanding”. This House has already debated this and established beyond peradventure that the use of a memorandum of understanding in the case of Rwanda was entirely designed to avoid any parliamentary scrutiny. Will the Minister say whether an agreement that will be reached for return will be subject to the international agreements procedure—CRaG—or not?
My Lords, I am very grateful to my noble friend Lord Purvis of Tweed for his devastating critique of the government reasoning behind the measures in this Bill. As he said, the measures could have serious consequences for women and girls who have been trafficked, and he provided some examples of the sorts of numbers that might be involved. The facts presented by my noble friend appeared to show clearly that the system of referrals to the national referral mechanism is not being abused. As he said, much of the increase resulted from claims from those who were already legally in the United Kingdom.
I am very grateful—going back to Monday—to the noble and learned Lord, Lord Bellamy, for indicating something of the thinking behind this Bill as far as the Government are concerned. He said:
“All I am saying is that one should have this power; I am not necessarily saying the circumstances in which one should exercise it”.—[Official Report, 5/6/23; col. 1229.]
I am beginning to wonder whether this is a sort of remake of “The Wizard of Oz”, with these very scary things being put up front with very little behind them. In reply to what my noble friend said about the vulnerable women and girls who could be detained and then deported from this country, the Minister said it might not happen because, as he said, all the Government are saying is that the Government should have the power to do that, but they are not necessarily going to use it.
In relation to Schedule 1—the safe countries—many noble Lords have given graphic examples of why countries do not belong on a safe list. I have to say: what is the point of the list? As the noble and learned Lord, Lord Bellamy, said on Monday, in response to the noble Lord, Lord Cashman, who gave a particular example of a gay man being sent back to a hostile country:
“Secondly, and in practice, this is all predicated on the country being willing to accept them. At the moment, the only agreement we have is with Rwanda. There may well be others. I hesitate to give any commitment but it seems, if I may say so, most unlikely that the fears of the noble Lord are well founded. It is most unlikely that these postulated circumstances will arise in practice”.—[Official Report, 5/6/23; col. 1234.]
Well, if the Government are saying that each individual case will be considered on its merits, and if a country that is on the list is found to be not safe for that individual, what is the point of the list? What is the point if there is only one country—or potentially two countries—on the list to which the Government can return people? Is this just to try to scare the horses, with no substance behind it? That is increasingly what this Bill looks like.
My Lords, I start, as other noble Lords have done, by thanking the noble Lord, Lord Purvis, for his introduction, the quality of his speech and the comments that he made, which deserve a full answer, and I thank all noble Lords for the detailed and important contributions that they have made.
In that light, I ask the Minister whether he will take back to Downing Street the fact that we do not need to read on the front page of the Daily Telegraph that the PM is set to overrule the Lords on boats Bills. The quality of the contributions that have been made in today’s debate show the importance of the consideration in detail of the legislation. Indeed, the Minister will know, as has been reiterated through the usual channels, that it is not the view held by every single noble Lord that the Bill should be blocked; indeed, we on the Front Bench of His Majesty’s Opposition have said categorically that we will not block the Bill. However, we will not be intimidated by having people, even the Prime Minister, attempting to intimidate us into not properly scrutinising, in a detailed and forensic way, the operation of the Bill.
We can see from the way in which noble Lords have put forward various points and considerations today that there are real questions to answer. I do not believe that the Government Front Bench here or the usual channels did that; to be frank, I think they were probably taken by surprise by it as well. But it is important that we in this House recognise that we have a role to play, which is to revise and improve legislation. The Government are then perfectly entitled to turn around and say, “We totally disagree and we’re not going to take any notice”, but we do not need to be lectured on how we should not attempt to revise it in Committee or on Report. That is an important point to make.
The other point to make as we consider this is for us all to wish the noble Lord, Lord Murray, well in his attempt to get the impact assessment out of the Home Office well before Report. It is too soon for me to ask him in a nasty way whether he has yet had any success, but even if I do not return to this throughout the Committee, I am sure a number of other Members will ask him how it is going—so I will start the process by asking the noble Lord how it is going with regard to getting the impact assessment out.
I will say, without repeating many of the points that have been made, that my noble friend Lady Chakrabarti summed up a point that has been reinforced by many noble Lords. At their heart, Clauses 5 and 6 and Schedule 1 give effect to Clause 2. In other words, the Government require a blanket ban on asylum claims and therefore require, in a blanket way, people to be removed from the country. I have said time and again that that removal, as we have heard from many noble Lords, is without any real understanding of where to or what the consequences will be. I ask again: is it a fact that the Government believe that the threat of deterrence overcomes or supersedes individual human rights? That goes to the heart of what we are debating, and is a point that the noble Lords, Lord Carlile, Lord Kerr and Lord Hannay, have made on numerous occasions. Is it the case that the Government are prepared to accept that, under Clauses 5 and 6 and Schedule 1, individuals may well be at risk of persecution or may have a well-founded asylum claim but, because they have arrived irregularly, that does not matter and they are going to be sent to wherever? Is that the case or not? We could do with knowing the answer to that.
At the end of the day—as the amendments from my noble friend Lord Cashman and the noble and learned Lord, Lord Etherton, say—there are countries listed in Schedule 1 where it cannot in any sense be confirmed that an asylum seeker who is gay will be safe. Victims of modern slavery and trafficking will potentially be returned. Fundamentally, Clauses 5 and 6 and Schedule 1 mean that there is no case-by-case assessment of the individual rights of an asylum claim, and therefore they will be automatically returned. That, at its heart, is not consistent with the UN convention on refugees or any of the various international treaties we have signed up to.
I return to the question of refoulement. Is it the case that we could return somebody to Rwanda and that person could then be sent back to another country where they might be at risk of persecution or various human rights abuses? How will Clauses 5 and 6 and Schedule 1 work with respect to the general principle of non-refoulement that we have had? I think it was the noble Lord, Lord Purvis, who asked a question about refoulement; it might have been the noble Lord, Lord Kerr. A question was certainly asked about the whole point of refoulement and what the Government’s position is with respect to that.
At the heart of this, because there is no case-by-case assessment, under Clauses 5 and 6 and Schedule 1 we very much run the risk—if the situation is not inevitable —of individuals who have a quite legitimate case for the granting of asylum being returned to dangerous situations. As such, there are very real concerns across the Committee about that.
Yes, the Lords Front Bench—this Front Bench. I cannot speak for other colleagues, but I can assure the Committee that no one is attempting to intimidate this House. As I understand it, the Prime Minister is misreported in the Daily Telegraph—it is not the first time the press has misreported a politician—and the Government fully recognise the role that this House has to play in scrutinising the legislation. The Government’s duty, if I may say so, is to listen, reflect on what is said and respond as they think fit, depending on the strength of the points made and the Government’s general policy. I emphasise that there is no question but that this legislative process should be followed duly and properly throughout.
That said, and in relation to following established due process, as it were, we debated Clauses 5 and 6 in detail in Committee on Monday. With your Lordships’ permission, I will not repeat what I have already said in that respect and refer your Lordships to the record in Hansard. To the extent that some points have been repeated, I refer to what was said in the last debate.
If I may also respectfully say so, on various other points that have been raised—for example, in relation to Clause 2, to trafficking, to unaccompanied children and to agreements with third countries and so on— I will not go over the ground that has already been covered or is to be covered in debates on other clauses. These are matters that we are debating on another occasion—the legal rights and remedies, for example—so for today’s purposes I will concentrate on Clauses 5 and 6.
I should perhaps once again go over the ground of what Clauses 5 and 6 actually say. If I am right and your Lordships accept the analysis, I venture to suggest that at least a considerable part of your Lordships’ concerns may be reduced or laid to rest.
In simple terms, Clause 5 deals with two different groups. The first group are nationals, including persons holding an identity document, of the European countries listed in new Section 80AA of the 2002 Act, which are the EU member states plus Switzerland and Albania. If a national of one of those countries makes an asylum or human rights claim, they may none the less be removed unless there are exceptional circumstances. The exceptional circumstances, which again were referred to today by the noble Baroness, Lady Meacher, are defined in Clause 5(5). This part of the Bill is essentially the same as the structure that has stood for many years, including when we were part of the EU, with the addition of Switzerland and Albania. These are safe countries and, in the Government’s view, no reasonable objection can be made in relation to this group.
Now we have the second group, who are nationals of all other countries: those outside the European countries defined in new Section 80AA. What is the position in relation to those nationals? The first point to make is that if the migrant is a national of another country—with all respect to the Republic of Ghana, the Republic of Uganda or India, let us take Nigeria—and they make an asylum or human rights claim, for example because of a risk of persecution for their sexual orientation, they cannot be sent back to that country. That is clear from Clause 5(8), so a lot of the concerns expressed about persons being sent back to these countries will relate to nationals of those countries who do not want to be sent back to them. Unless others correct me, if they make a protection—that is to say, an asylum or human rights—claim, they cannot be sent back as nationals to those countries where they fear persecution. That is a very considerable safeguard.
Where can they be sent back to? They can be sent back only to another Schedule 1 country, but subject to very important conditions. The most important condition in this context is that set out in Clause 5(3)(d): only if there is reason to believe that they would be admitted to that country. In other words, it depends on whether we have an agreement with that country to take them back. That is not at present the case, except in relation to Rwanda, but it may in future be the case in relation to other countries.
To take a point raised by the noble Lord, Lord Kerr, or possibly the noble Lord, Lord Carlile, as to whether such future agreements would be—forgive me, it was the noble Lord, Lord Hannay—subject to parliamentary scrutiny, that is a matter for the future. I cannot commit the Government on that here at the Dispatch Box. However, I think your Lordships can be reassured that the availability of all kinds of remedies and the force of public opinion in this country would necessarily require a very full debate to take place before we made an agreement with another country. There is the constitutional safeguard of the constitution of public debate in that regard.
There is no indication that the countries mentioned in this debate—very understandably, Nigeria, Ghana, Uganda and even India—are likely to be, in any foreseeable future, places to which the relevant migrants could be sent. If we were ever to reach an agreement with another country, the Secretary of State has powers in Clause 6, in particular Clause 6(3), to exclude from that agreement persons of particular sexual orientations or with particular protected characteristics set out in that clause. That is a further protection against the fears noble Lords have expressed.
If all of that were to fail, it remains the case that the individual affected could make his suspensive harm application on the basis that he would suffer irreversible serious harm in that context. I think I can legitimately offer noble Lords reassurance that a great deal of the fears understandably expressed in your Lordships’ Committee rest on a particular view of the Bill that is not entirely correct.
I was asked by the noble Lord, Lord Paddick—it was implicit in most of the other comments—what Schedule 1 is for. I think the noble Lord, Lord Kerr, asked what the rationale of Schedule 1 is. The answer is that Schedule 1 is a reproduction, an amalgamation and a restatement of all the existing legislation from 2002 onwards, in which various countries over the years have been added as safe countries. For example, in 2005 the Labour Government added India on the basis that it was, in general, a safe country.
This also enables me to deal with the “in general” point, which has stood as a statutory point for the last 20 years at least. It might not be entirely within the active career of the noble Lords, Lord Hannay and Lord Kerr, but it has been on the statute book for 20 years. It has not so far given rise to any particular difficulties. That is the background to what we are considering.
In the future, it might be appropriate to keep Schedule 1 updated; it might be necessary to make changes from time to time. Let us cross those particular bridges when we get to them. At the moment, there is no practical possibility of Uganda, for example, accepting migrants who arrive in Dover into Uganda. It might be, to take a point raised by the noble Lord, Lord Carlile, that the existence of Schedule 1 or the failure to amend it, might be challenged in judicial review. If I may respectfully say so, it would be a somewhat adventurous case to compel a Minister to legislate or to amend primary legislation, but let us again cross those bridges when we get to them.
I hope that I have not taken up undue time and have covered most of the questions that I was asked. I am sure that I shall be reminded if I have not done so; I will do my best to answer them, if anyone reminds me.
I am grateful to the noble Baroness for her question, but I cannot answer it today at the Dispatch Box. My respectful reply is that this issue does not arise for the reasons I have given. The Bill does not envisage, at the moment, returning people to such countries. The general position is that we can continue discussing the provisions on legal requirements, trafficking, unaccompanied children and so forth, but this part of the Bill is an essential part of the Bill. I therefore beg to move—
I am most grateful to the Minister and have great respect for his legal analysis. However, I will correct him on the point I made about judicial review. I was not saying that a judicial review could be taken in which the order would be for the Minister to amend the law. The Minister cannot amend the law; we in this Parliament amend the law. The application would be for a judicial review of the refusal of the Minister to take steps to amend the law. That is quite a different matter, and I do not apprehend any difficulty in making such an application for judicial review.
My Lords, I apologise to the noble Lord, Lord Carlile, if I misunderstood his point. I respectfully continue to beg to differ as to both the likelihood of such judicial proceedings or the relevance of such judicial proceedings to today’s stand part debate. So, if your Lordships permit me, I beg to move—
I draw attention to my entry in the register of interests. I ask, gently, whether my noble and learned friend the Minister would not agree that it is worth reminding ourselves that some of these countries—indeed, all those we talked about in the last hour—are Commonwealth countries, including Uganda, India and Ghana. It is worth remembering that Rwanda is not only a Commonwealth country but the current chair-in-office of the Commonwealth, so, surely, that must count for something.
The noble and learned Lord is so reassuring, and his manner is so friendly, that one is tempted to believe that this might all be as good as he says. On the two-part process, he says that the list sets out possible destinations, but that the Secretary of State would make a judgment about the individual and whether the individual should not be sent to a particular country for reasons particular to the individual. If it were the noble and learned Lord making these decisions, I would be very reassured; unfortunately, it is the Home Secretary.
I am sorry to press the Minister but he has not really answered my question. He says that the list is based on history, but in the past we have not sent people compulsorily to go through an asylum process in another country—so there is something new here. Further, we have not been sending people to countries where there is no asylum process but we are insisting that they must seek asylum there. I do not think the noble and learned Lord has addressed that point.
I would also be grateful if the Minister would construe for us the language in the first paragraph of Clause 6, which addresses “in general” and “a part”. I have not heard his answer to my question as to why it is all right that a country should not in general contravene the human rights convention—implying that if in particular it does, we do not care—and, secondly, why it refers to part of a country or territory. I do not understand how we can get an international agreement with a counterpart. If I am a negotiator, how do I persuade him to accept that there are parts of his country that are unsafe and parts of his country that are safe? Surely the agreement has to be with the other country in respect of the full territory of the other country, not in respect of part of the territory.
My Lords, in relation to the latter point, I repeat the point I made on Monday that this is precautionary. There is no reason to deprive oneself of the possibility of providing for “a part”. With an enormous country such as India, it may be that up in Nagaland or somewhere there are some disturbances, but that does not prevent us saying that India is a safe country. That is the Government’s answer to the first point.
Our answer to the second point is that the words “in general” have—I am open to correction and I will correct myself if I am wrong—stood for 20 years on the statute book without difficulty and do not preclude, in an individual case, an application being made to oppose removal on the grounds of irreparable harm. It is the combination of a general view that the country is safe with the possibility of individual protection. Those are essentially the answers I gave on Monday.
I entirely accept the noble Lord’s point that this is new, but, for the reasons I have tried to explain, it is a workable and, I submit, balanced approach to a very difficult problem which the Bill is trying to solve.
As always, the Committee is very grateful to the Minister. I want to be absolutely certain that I have understood his case, because this is so important. My understanding is that he is reassuring the Committee on the basis that, first, nobody is going to be sent to the country that they fear in the first place—they are not going to be sent back directly to the country that they have escaped from and which they say was originally persecuting them—and, secondly, they can be sent only if there is a deal with a country. So maybe this is all going to be rhetoric in the end: we are going to tell the British people that we are stopping the boats, and we are going to warehouse more and more people under this whole edifice because there will be a duty under Clause 2 to remove people to places where they are irremovable to because there is no deal. Thirdly, the Minister points to the little chinks in the scheme whereby somebody might make some kind of exceptional non-suspensive claim. That is what I understand to be the three parts of his case.
On sending people to third countries that are unsafe because they are gay or because there is some other reason why that individual person would be at risk, it matters not that they would be unsafe in a third country or unsafe in a first country. In relation to the other little nudges and winks that he offers us—that this is perhaps fiction because in the end we do not have deals with a lot of these countries—that might be some comfort to people coming, and maybe even to those smuggling them, but it is certainly no comfort to the British people on the cost or on the toxicity of the debate we are having about stopping the boats, when actually the boats are not likely to be stopped.
My Lords, it is a question of judgment. The Government’s judgment is that this legislation will go a long way towards reducing the terrible risks that people and unaccompanied children are facing in crossing the channel in difficult circumstances, and will destabilise the business model of the people smugglers. Those are surely legitimate objects for any Government to pursue.
The noble Baroness’s analysis is essentially correct: if I am a national of a particular state and I make an asylum claim or human rights claim then I cannot be sent back to that country; I could be sent back to a country with which—she puts it somewhat colloquially, and I would not quite use these words—we have a deal. The country with which we have a migration partnership at the moment is Rwanda, so that is still a possibility, subject to the individual in that case being able to make an application for either a factual suspensive application or an application based on imminent and foreseeable and serious harm. That is how it works, and that is how the Government see it.
While I am on my feet, I will address the points made by the noble Lord, Lord Coaker, about whether the threat of deterrents supersedes individual human rights. For the reasons I have given, our answer is that there is no question of superseding individual human rights due to the protections I have just explained. Refoulement is covered by the existing agreement with Rwanda, and I am sure it will be covered in future agreements.
My Lords, I wonder if an answer could be given to the question from the Minister’s colleague on the Benches behind him, who asked about Commonwealth countries. Would the Minister agree that many of the Commonwealth countries have laws which criminalise homosexuality? Indeed, Uganda has just passed legislation which says that the death penalty can be used in relation to homosexuality, and in India there are currently a lot of issues and questions about the treatment of Muslims there. There might be very real issues even when it comes to Commonwealth countries.
My Lords, as the noble Baroness says, there might indeed be issues. Their legislation is a matter for them. The fact that they are members of the Commonwealth which upholds, or seeks to uphold, barest basic standards is a relevant background consideration, as the noble Lord pointed out.
For the reasons I have given, as best I can, the protections in the Bill are adequate to deal with the problems that have been raised. I respectfully say that Clauses 5 and 6 and Schedule 1 should stand part of the Bill.
I am grateful to the Minister for his thorough response, and to those who have spoken.
I looked at the reference to the Commonwealth when the Bill and the schedule were published. It is worth noting that 76% of Commonwealth countries are not considered by this Government to be safe, because 76% of the Commonwealth is not in the schedule. That is not us questioning it; that is the Government making their own decision.
The Minister, in his typically emollient way, suggested that we do not really understand these clauses and that if we did we should not be concerned because, as he put it, the legislation will have no practical operability. We are in a situation where the Home Office is doing the reverse of virtue signalling, which is to try to create, as my noble friend Lord Paddick indicated, the most punitive and threatening environment, of which the justice department will have to pick up the pieces. The Minister has been at pains to point out that there are many elements which would mean that there is no practical operability, but we are being asked to legislate for this, and on the basis of a lack of agreements.
On Monday, the Minister said to me:
“I suppose that the direct answer is that one would have to negotiate an appropriate agreement with the country concerned”.—[Official Report, 5/7/23; col. 1229.]
As the noble Lord, Lord Kerr, and others indicated, the Government have not done so, but they are still asking us to legislate. The Minister said that, when we are negotiating some of these agreements in the future, there would be a “force of public opinion” on the agreements and debate. But on the only one that we have, with Rwanda, there was no debate or consultation. We were surprised by it. It was not a treaty that was ratified by Parliament; it was an MoU. The International Agreements Committee forced a debate on the MoU in this House, in which noble Lords took part, and the committee raised the concern expressed by the noble Lord, Lord Coaker, about refoulement. Unfortunately, this is the pattern of the Government.
On Monday, the Minister was not even able to confirm to me—he said he would write to me and I am grateful for that—that there are child facilities in the Rwanda agreement, because it was not designed for that in the first place. That addresses the point that the noble and learned Baroness, Lady Butler-Sloss, indicated with regards to those who are children. I referenced 73 children, up to 2022, who would be in the situation of being referred to protection and then on their 18th birthday would receive, under the Bill, a third-country notice, and they would have no idea what that country would be.
I say to the Minister that it is not the case that someone saying that, as he put it, they do not want to go back to a country is sufficient. The bar in Clause 38(4) is high. It is not a case of someone not wanting to go to a country. It involves an application to the Secretary of State who, under the Bill, has a duty to ask the country itself whether that person would be at risk. What on earth is that country going to say? “That person is going to be at risk, so please don’t send them here”—of course that is not going to happen. That is in the Government’s Bill.
The noble Lord, Lord Kerr, raised a point about the use of “in general”. I am puzzled by the reference to the fact that we have a 20 year-old precedent for this. I would be grateful if the Minister could write to me about that. What we do have in Section 80B of the 2002 Act is the definition of a safe third state. There is no reference to general terms within that. Section 80B(4) says:
“For the purposes of this section, a State is a ‘safe third State’”, and it has three categories under paragraphs (a), (b)(i) and (ii), and (c), and it has no reference to “in general”. What it does have, in specific terms, under paragraph (c) is that,
“a person may apply to be recognised as a refugee and … receive protection in accordance with the Refugee Convention”.
It is our law that we do not send someone to a country if it is not a signatory to the refugee convention. That is now being absolutely turned on its head, and there is no protection for that. I would be grateful if the Minister in writing to me could indicate how the Bill sets itself against the 2002 Act, which is not being repealed.
A number of other areas in this group have been raised by noble Lords. We will have to return to this. There has been an insufficient response. Simply saying that we need not fear because legislation we are being asked to pass is not a danger because it will not be operable is no way of making legislation. In the meantime, I withdraw my opposition to the clause standing part.
Clause 5 agreed.
Schedule 1: Countries or territories to which a person may be removed
Amendments 41 to 52 not moved.
Schedule 1 agreed.
Clause 6: Powers to amend Schedule 1
Amendments 52A to 54 not moved.
Clause 6 agreed.
Clause 7: Further provisions about removal