Lord Carlile of Berriew:

Moved by Lord Carlile of Berriew

At end insert “, and do propose Amendment 22R as an amendment to Amendment 22B—

22R: After subsection (1) insert—“(1A) Regulations under subsection (1) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.””

My Lords, I hope I will be allowed a moment when referring to my Motion B1 and Amendment 22R on page 5 of the Marshalled List to pay a very short tribute to the staff of the Public Bill Office. I was treated very kindly by a very tolerant member of staff there when I was being completely dysfunctional late last night and early this morning. They have been put under enormous pressure, and I think we should appreciate that. It may have felt to them like bullying, I am afraid.

I do not know why we have been forced to consider these amendments today, or indeed before the Summer Recess. The very earliest this Bill could ever be used would be after the Supreme Court decision in October, or whenever that is given; we do not know the exact date. Indeed, that may not be the end of the litigation in any event. I do not understand why we were not left to consider this in the sittings in September. I hope we will not be put in this position again.

I now turn to my Motion. This is where I express my genuine gratitude to the Government—to the Minister and others, including the Chief Whip—because they have made, in my view, a correct and noble concession to the objections that this House voted for in an amendment I moved on retrospectivity, pointing out as I did at the time that retrospectivity, though not a “never”, is frowned on in our law.

My Motion on page 5 of the Marshalled List—which I will not test the opinion of the House on tonight—mitigates the rigour of the exception that has been created in the Government’s amendments. They say they have abandoned retrospectivity, to put it crudely, but they have retained a regulatory power to abandon retrospectivity. I am not going to force the issue tonight, but I ask the Government to reflect on the constitutionality of that approach, because it makes me feel decidedly uncomfortable. I do not want to dilute my thanks for the acceptance in principle of what I moved a few days ago.

My Lords, I draw attention to my interests as laid out in the register. These Benches are supportive of the discomfiture, which the noble Lord, Lord Carlile of Berriew, just referred to, to find that eventual clarification. We also support Motion G1 in this group.

My Motion F1 would mean that if an individual has been made inadmissible under this legislation and has not been removed to a safe country after six months, their claim will be processed within the UK system. The Ministers in both Chambers, in response to my Amendment at an earlier stage, said—it has been repeated here—that people might game the system or that it would incentivise people to make spurious claims so as to extend their time in the United Kingdom in order to reach the magic six months.

In response to this concern, the current form of Motion F1 would pause the calculation of six months during any suspensive claim as set out in the Bill. It is also important to be mindful that the Bill in itself is claimed by Ministers to prevent people from making last-minute legal challenges to stop removals. My Motion totally disincentivises people from making spurious claims.

The Minister in the other place said that my earlier amendment would undermine the Bill. It does not. It would simply provide a backstop that protects the taxpayers of this country from indefinitely supporting people existing in the UK in limbo.

The Government’s own impact assessment on the Bill assumes that people will be detained for 40 days before removal. In this Chamber, we have heard constantly from the Minister that it will be not months but weeks or days when people are removed. On that basis, the ability to make a claim after six months should not be a problem, because it is totally in line with the Government’s expectations of their very own Bill.

Without this amendment, the Home Secretary is setting herself up for an extremely challenging time. There will be no way of resolving the foreseeable challenge of not having anywhere to remove people who arrive in the United Kingdom on irregular routes. Whether that is resolved in the future, the Government express the desire that they will be able to make this happen. If you believe, in the Government’s own words, that the Bill can be “workable”, then it is entirely financially prudent for us in this Chamber to try and insist that, in the current climate, the Government should be prudent with their spending of the public purse in using taxpayers’ money to support people indefinitely and without a returns agreement—because six months will have passed.

In addition to the financial considerations, it does not seem to me to be particularly in line with a Conservative mindset to enforce that people remain in the United Kingdom without being able to contribute, use their skills or participate in society. If these people cannot be removed after a reasonable amount of time, their claim should be processed, so that they either get on with their lives in the United Kingdom or be removed to their country of origin.

My Lords, I draw attention to Motion G and my Amendment 23B in lieu. I thank the noble Lord, Lord Cashman, in particular, who has been a stalwart supporter of me in relation to this Clause from the very beginning.

The clause identifies countries currently specified in Schedule 1 which, the evidence and the law show—by virtue of decisions made by UK courts—are not safe places. I explained to the House on Report what the evidence briefly was in relation to each of them. The House and I have not received any refutation of the point that I made—that all these countries are unsafe places for LGBT people. The only answer that is given by the Government and repeated by the Minister is that this will all come out in the wash when a removal notice is served, and a serious harm suspensive claim can be made.

I am afraid that simply is not good enough. The Bill contains a schedule: Schedule 1. Schedule 1 identifies itself as listing places to which persons can be removed. Schedule 1 is related back to the provisions of Clauses 5 and 4, which provide that people can be moved only to those countries in Schedule 1.

If the approach of the Minister were correct, we would not have a schedule at all. But we have a schedule, and it rightly makes a distinction between those countries which are safe—so it says—and those which are not. There is also a Division between those which are safe for women and those which are not. I have put forward the amendment for another group of disadvantaged people, who, as the Minister referred to, are long recognised in our own law: LGBT people.

We should not provide a veneer of respectability for these countries; rather, we should point them out as countries which are intolerant and persecutors of a particular community. The answer that the Minister gave—that it does not matter and that it will all come out in the wash—is not good enough when there is a schedule which specifies, as it does, which countries are said to be safe.

The next point in the amendment in lieu is not limited to LGBT people; it concerns countries such as Hungary and Poland, where the EU Parliament has already proposed that proceedings be taken under Article 7 of the Treaty on European Union. As Members of the House will be aware, those proceedings take place where there is a serious risk of infringement of Article 2, which upholds the standards of freedom, dignity and human rights. In those circumstances, we say that those are not countries to which anyone should be sent. That derives support from the fact that elsewhere in the Bill—noble Lords will see the cross-reference—where there is a question of returning people to EU countries, the so-called Section 80AA countries, one of the grounds on which a protection claim is admissible is precisely the one I have mentioned: where there is a proposal to commence proceedings under Article 7 of the TEU. There is absolutely no reason why any difference should be made in relation to removals by people who come to this country as refugees.

Finally, I draw attention to the fact that my amendment in lieu provides that

“no person may be removed to Rwanda until the conclusion of all litigation concerning the lawfulness of arrangements for removal to that country”.

Why is that important? That is important because we do not want to reach a situation with a constitutional debate about whether the approval of Schedule 1, with Rwanda in it, means that the Government can say that, whatever the courts decide, Parliament, having legislative sovereignty under our constitution, has determined that it is a safe place, and so that country must be identified as one which is unsafe, unless and until some litigation is found—if it is ever found—in favour of the Government in relation to Rwanda, and that may never happen. On that basis, I will seek to press my amendment.

My Lords, I will speak very briefly to the Amendment in lieu, in Motion G1, in the name of the noble and learned Lord, Lord Etherton. Taking what the Government have said at face value on their protections of LGBT people, I ask them to accept the amendment, because it reinforces the principle of the protection of LGBT people and others.

On reflection, I point out that, of the 58 countries that currently criminalise homosexuality—and they are on the increase, as we have seen with Uganda—over 50% are in the Commonwealth. They are countries with which we are more than likely to reach safe third country agreements. Furthermore, 11 countries currently have the death penalty, and there is further agitation for the increase of that across other states. I therefore argue that the amendment is proportionate and necessary.

My Lords, I congratulate the noble Lord, Lord Carlile, on getting a concession from the Government and understand the point he made with his Motion, which I understand he will not move. I am pleased that it has been accommodated.

The noble Lord, Lord German, explained his Amendment extremely well; it provides a backstop for the taxpayer to stop people going into legal limbo, being a burden on the taxpayer indefinitely and getting into the grey area which so many in this situation are in right now. As he said, it is totally in line with the Government’s expectations of the Bill, so if the noble Lord chooses to press his Motion F1 then we will support it.

My noble friend Lord Cashman summed up the support for Motion G1, in the name of the noble and learned Lord, Lord Etherton. If he chooses to move it, we will support him. As my noble friend said, it reinforces the principle of protection for LGBT people. In the words of the noble and learned Lord, Schedule 1 should not provide a veneer of respectability to certain countries that are currently on it, so we would support him.

My Lords, as I indicated earlier, I ask the Government to consider leaving to Parliament the final decision on any regulations reintroducing retrospectivity. That said, for the reasons I gave earlier, I beg leave to withdraw Motion B1.

Motion B1 withdrawn.

Motion B agreed.