Safety of Rwanda (Asylum and Immigration) Bill

Lord Etherton Excerpts

Report stage
Monday 4th March 2024 Lords Chamber

Moved by

[Lord Etherton]

22: Clause 4, page 4, line 12, after “question” insert “or, where the person in question is a member of a particular social group within Article 1A(2) of the Refugee Convention 1951, for that group”
Member’s explanatory statement
This amendment and the related amendments to Clause 4(1)(b) and Clause 4(4) provide for the situation where the person in question is a member of a particular social group, the members of which have a well founded fear of persecution, and following the decision of the Supreme Court in HJ (Iran) v SSHD [2010] UKSC 31 the focus is on the group and not the individual circumstances of each member of the group.

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[Lord Etherton (CB)]

My Lords, I will also speak to related amendments that I have tabled: Amendments 24, 26, 28 and 30. I am extremely grateful to those who have co-signed all or some of those amendments: the noble Lord, Lord Cashman, the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Brinton.

I will speak very briefly, because I spoke previously about this both on Second Reading and in Committee. The current version of Clause 4(1) enables an applicant to oppose removal to Rwanda on the grounds that it is not a safe country for the applicant, but only if the applicant provides

“compelling evidence relating specifically to the person’s particular individual circumstances”.

Similarly, Clause 4(4), on the ability to obtain interim relief from removal to Rwanda, depends on particular individual circumstances relating to the applicant in question.

The defect in those provisions—a very basic defect—is that no provision is currently made for applicants in one of the important categories of refugee defined in Article 1A(2) of the 1951 refugee convention. That category comprises applicants who have a well-founded fear of persecution because of their

“membership of a particular social group”.

You can immediately see the difference between other categories of refugee under the convention, who are individual persons, and this category—which is probably the largest, or certainly the most important—comprising a large number of people who qualify as refugees because they are members of a particular social group. Yet when we look at Clause 4—I mentioned subsection (1) as well as subsection (4) on interim relief—there is no reference whatever to “group”, so one category of refugee has simply dropped off the list completely.

The proper approach of courts and tribunals to such a refugee was described in detail by the Supreme Court in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department, a 2010 decision, especially in the judgment of Lord Rodger of Earlsferry. I will not take the House through the case in detail. It is sufficient for me to say briefly that the approach to be taken, as established by that case, is that, if the applicant for asylum claims to be a member of a particular social group, the other members of which have a well-founded fear of persecution, the applicant is entitled to be considered a refugee provided that they satisfy the particular decision-maker that they are a member of that social group.

HJ (Iran) and the other case I mentioned concerned men who wanted to live an openly gay life and would have faced persecution in their home country had they done so, but the principle that I just described of the way to treat this category of refugee, as set out in HJ (Iran), applies across the board. It is not limited to people who are LGBT but applies to those who are members of a particular social group because of their ethnicity or gender or who hold a particular religious or political belief. For example, by way of analogy with the LGBT men who applied in HJ (Iran), if people hold particular philosophical, political or religious views that they have not expressed because of a real risk of persecution, but would like to do so and to live a life in which they can express those views, they are to be treated as members of a social group and granted the status of a refugee accordingly.

As the noble Baroness, Lady Chakrabarti, said in Committee, the Bill presents us with a false dichotomy. On the one hand, it is all about me—the claimant, the individual; on the other hand, it is about Rwanda generally. The former, the Bill says in Clause 4, allows you to make a claim for interim relief or removal generally to Rwanda, but the latter does not. In between those two extremes is the category of a member of a social group with a well-founded fear of persecution. This is not a torpedo point; it is not intended to undermine or delay this legislation. It is a reflection of the omission of a basic category of refugee defined in the convention, and an extremely important category as well. On that basis, I beg to move.

[Baroness Butler-Sloss (CB)]

My Lords, I have put my name to the four amendments tabled by the noble and learned Lord, Lord Etherton. I support everything he says and, since we are on Report, I do not propose to add to it. I also have my own Amendment 42. I declare an interest as the co-chairman of the All-Party Parliamentary Group on Human Trafficking and Modern Slavery and the deputy chair of the Human Trafficking Foundation.

I spoke to this in Committee. Quite simply, and taking on what the noble and learned Lord has just said, this is a very special group of people who are in this country not because they have chosen to take the boat trip but because they have been brought here, by boat, lorry or some other route, and they are victims. When one starts complaining about people who should have stopped in France because France is a safe country, it absolutely does not apply to victims of modern slavery. They are here on an involuntary basis and need to be regarded in a totally different way.

Since I have been opposing much of the Rwanda Bill, I have heard endlessly, “What is it that you or other opposition would do to improve the situation of those crossing the channel?” I deeply regret those crossing the channel and I do not have an answer, but I do not believe that the need to stop people crossing the channel in a dangerous situation is any reason to pass an utterly shocking Bill. It is constitutionally incorrect and does not look at genuine victims, such as those victims of modern slavery. It is no answer to those of us who cannot accept what is going wrong in this country and what is going wrong in this Bill that, because we cannot offer an answer to the people crossing the channel, therefore we should be disregarded. Modern slavery is one of the most shocking crimes, making vast sums for perpetrators across the world. About a third to half the victims of modern slavery come to this country. The Government are ignoring the plight of this most vulnerable group of people. I hope that, at this last moment, they will think again about victims of modern slavery.

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[Lord Sharpe of Epsom (Con)]

I am advised by my noble and learned friend Lord Stewart of Dirleton that “must” and “shall” both have a mandatory quality, but I will of course write to the noble Lord.

If there is compelling evidence, despite the safeguards in the treaty, decision-makers will be able to consider certain claims that Rwanda is unsafe for an individual due to their particular circumstances, as we have discussed a number of times. However, I say again that these amendments are unnecessary. On that basis, I invite the noble and learned Lord to withdraw his amendment and urge other noble Lords not to press theirs.

[Lord Etherton (CB)]

I am very grateful to the Minister for that analysis of the speeches made and the Government’s response to them. I am also grateful to all noble Lords who have spoken in this debate, which has raised some important points about people who are extremely vulnerable.

The noble Lords, Lord Kerr and Lord Coaker, articulated the point that all these amendments dealing with exemptions are objectively extremely reasonable and important, and do not involve huge numbers of people such as to undermine the effectiveness of this proposed legislation. Descending to details to say that they are not necessary, when it is plain that they are, shows a certain lack of not only sensitivity to the Chamber but a spirit of humanity which should underlie the Government’s response.

Turning to my Amendment 22 and its consequential amendments, I find it difficult to understand how the Government can justify dropping and effectively disfranchising one of the expressly specified categories of refugee in the convention. There is nothing in the policy statement issued by the Government when the Bill was published or in the Explanatory Notes to say that they would do this. I would have thought that dropping a specific category of refugee defined by this convention which we have signed up to is an extraordinary move.

The justification seems to be that the Government will not permit reference to groups because it would significantly enlarge the number of those entitled to claim. However, if they are entitled to claim by virtue of a convention which we have signed up to, the Government must accept that, like all the other 149 states signed up to it. You cannot simply say, “We’ll ignore this or that category of refugee” or “We’ll just rely on this category of refugee”. There must be an ability, in one way or another, for all those mentioned as refugees to explain why removal would result in persecution and serious harm.

Leaving that matter aside, I will comment on the intervention by the noble Lord, Lord Murray, on comments made by the noble Lord, Lord Cashman, about the situation of LGBT people in Rwanda. I do not want to go through this again, but there are two factors on which the noble Lord, Lord Murray, did not comment, and in fact have never been commented on appropriately by the Government, by way of some sort of excuse in relation to LGBT people and the risk that they face in leading an openly gay life in Rwanda.

First, the travel information provided by the Foreign, Commonwealth and Development Office remains the same as it always has done, as it was at the time of the Illegal Migration Act: there is a danger to LGBT people living openly as such in Rwanda. Secondly, and importantly, no reference has been made to something that I mentioned in Committee: the country report on Rwanda of the US State Department, which was published only one year ago, and which talks about persecution and the possibility of physical harm to LGBT people. The Government have never addressed those points at all, but I am not going to go further into that.

As to the others, I personally strongly support all the other exemptions, which seem to me to be reasonable, humane and entirely appropriate, not designed to undermine the Bill but really rising to the level of morality which we should display as a country in relation to these categories of people. Having said all of that, and having heard the Minister, the best thing that I can do is to leave it to the amendment in the next group, tabled by the noble Baroness, Lady Chakrabarti, which contains reference to groups. For my part, having had this debate will have been useful in honing the points that will have to be met in relation to that. On that basis, and that basis alone, I beg leave to withdraw my amendment.

Amendment 22 withdrawn.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Etherton Excerpts

2nd reading
Monday 29th January 2024 Lords Chamber

[Lord Etherton (CB)]

My Lords, there are so many impermissible aspects to this Bill that it is difficult to know where to start. There is the overarching point that the Rwanda treaty—which underpins the central theme of the Bill that Rwanda is a safe country—has not yet been ratified, and then there are all those aspects of the Bill which contravene our constitutional norms or breach our international obligations.

The Bill seeks to pre-empt any future consideration by the courts on the factual question of whether Rwanda is a safe country. This is a blatant usurpation of the judiciary’s function. Contrary to Article 13 of the European Convention on Human Rights, the Bill contains no domestic remedy should the courts conclude at any time that the Bill is incompatible with Articles 2 or 3 of the ECHR. The courts could make a declaration of incompatibility under Section 4 of the Human Rights Act, but that would not be an effective remedy in the present case, as it is plain that the Government have no intention of complying with their obligations in so far as they conflict with the Bill.

Clause 4, which provides for a decision not to remove based on compelling evidence relating specifically to a person’s particular individual circumstances, is inconsistent with established jurisprudence that, for members of a particular social group within Article 1A(2) of the refugee convention who have a well-founded fear of persecution, it is sufficient merely to establish membership of such a social group. This is of particular importance to LGBT+ people. I was given assurances from the Dispatch Box during the passage of the Illegal Migration Bill by both the Minister and the noble Lord, Lord Murray of Blidworth, that the principles found in the 2010 Supreme Court case HJ (Iran) would continue to apply. They expressly confirmed that, if the open expression of a person’s sexual orientation would prevent them living in a third country without facing persecution, that would constitute a risk of serious and irreversible harm. Rwanda is such a country, as the Government accept and as the current travel advice of the FCDO describes.

Clause 5, which gives Ministers a discretion to ignore interim measures of the ECHR, plainly breaches the convention. It would deny a refugee an effective right to apply to the European court and be in direct conflict with the obligation to comply with decisions of the court. In its latest analysis, the UNHCR has repeated that the Bill represents impermissible burden-shifting in contravention of the refugee convention.

Finally, the proposed Rwanda treaty does not remedy the human rights deficiencies in Rwanda—other than refoulement—mentioned in the Supreme Court judgment. I have already described the hazardous situation there of LGBT+ individuals seeking to live openly, consistent with their sexual orientation.

What conclusion can we draw from all this? The Bill is a travesty of our constitutional and legal norms and our historical moral standards.

Illegal Migration Bill

Lord Etherton Excerpts

Consideration of Commons amendments
Wednesday 12th July 2023 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, there are three reasons we should be stubborn about not allowing the Bill to go through. The first is that this was not in the Tory Party manifesto: we do not have a duty to pass it. Secondly, Rwanda is not a safe country. Thirdly, we cannot pass legislation that allows the Government to break the law; that does not make sense.

[Lord Etherton (CB)]

My Lords, I support the amended version of Clause 1, put forward by the noble Baroness, Lady Chakrabarti. Whether or not Parliament intends to incorporate international treaties within our own law depends on the wording. The point was made on Report that the noble Baroness’s previous wording had no reference to interpretation. It seems to me quite clear now that the emphasis has been put on having regard to the provisions in these international treaties which bind this country for the purposes of interpreting this Act. I consider that this falls plainly on the right side of the line.

As for my own amendment to Motion S, which the noble Lord, Lord Murray, has addressed, I thank the Minister for his time, patience and reasonableness over the discussions concerning this. I was principally concerned that those who are entitled to the protection of the convention because of a well-founded fear of persecution in the country stated in the removal notice should not have to have an additional test of irreversible harm in order to prevent removal there. The assurances the noble Lord has given have satisfied me over that concern, particularly in relation to the principles in the case to which he drew attention, HJ (Iran) for LGBT refugees. My concerns have been satisfied and for that reason I will not oppose the Motion of the Government on this point.

[Baroness Ludford (LD)]

My Lords, briefly, we on these Benches support all the Motions to amend the government Motions. The noble Baroness, Lady Chakrabarti, has well made the point that even if one could have argued that the original Amendment 1 was a backdoor incorporation—an argument I always found unpersuasive—that objection certainly cannot be made of the new text of Motion A1, which is clearly nothing of the sort. The Prime Minister has been at the NATO summit in Vilnius upholding international law against breaches through Russian aggression. Indeed, the North Atlantic Treaty of 1949 cited the rule of law at one of the core principles. The Prime Minister was also recently at the Council of Europe summit. Again, the core values in the declaration were the threats to human rights, democracy and the rule of law.

On Report, the noble Baroness, Lady Helic, talked about how this amendment

“is firmly in the Conservative tradition of strengthening, not undermining, the international rule of law”.—[Official Report, 28/6/23; col. 704.]

She reminded noble Lords that

“Conservative Governments were instrumental in creating the first four conventions listed in the amendment”.

Finally, on Amendment 93, we still have concerns, as do doctors, about the proposals in the Bill for as yet unproven medical age assessments. Amendment 93 provides the most basic safety net for those undergoing age assessment: the right to appeal a judgment. Removing that right will not deter any smugglers, or child refugees in need of appropriate safety and protection. We urge support for the amendment Motions.

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[Lord German (LD)]

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.

[Lord Etherton (CB)]

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.

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Moved by

[Lord Etherton]

At end insert “, and do propose Amendment 23B in lieu—

23B: After Clause 6, insert the following new Clause—
“Restrictions on removal destinations: LGBT and other persons
(1) Where the Secretary of State is required by section 2(1) to make arrangements for the removal of a person from the United Kingdom—
(a) trans men and women must not be removed to Brazil;
(b) LGBT persons must not be removed to Gambia, Ghana, Jamaica, Kenya, Liberia, Malawi, Mauritius, Nigeria, Rwanda or Sierra Leone;
(c) no person may be removed to a territory or country listed in Schedule 1 (countries or territories to which a person may be removed) if the exceptional circumstances specified in section 5(5)(b) apply to that territory or country;
(d) no person may be removed to Rwanda until the conclusion of all litigation concerning the lawfulness of arrangements for removal to that country.
(2) the Secretary of State may by regulations amend subsection (1) to—
(a) dd or remove a country or territory, or part of a country or territory, in order to apply relevant decisions of courts and tribunals operating in the United Kingdom and having regard to decisions of the European Court of Human Rights and any other material change of circumstances;
(b) reflect changes made to Schedule 1 by regulations made under section 6.””

Illegal Migration Bill

Lord Etherton Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

Moved by

[Lord Etherton]

130: Leave out Clause 38 and insert the following new Clause—
“Serious harm suspensive claims: interpretation(1) The definitions in subsections (2) and (3) have effect for the purposes of section 37, this section and sections 39 to 51.(2) A “serious harm suspensive claim” means a claim by a person (“P”) who has been given a third country removal notice that the serious harm condition is met in relation to P.(3) The “serious harm condition” is that P would face a real risk of serious harm if removed from the United Kingdom under this Act to the country or territory specified in the third country removal notice.(4) The following are examples of harm that constitute serious harm for the purposes of this Act—(a) death;(b) persecution falling within subsection (2)(a) or (b) of section 31 of the Nationality and Borders Act 2022 (read together with subsections (1) and (3) of that section) (Article 1(A)(2) of the Refugee Convention: persecution) where P is not able to avail themselves of protection from that persecution;(c) torture;(d) inhuman or degrading treatment or punishment;(e) onward removal from the country or territory specified in the third country removal notice to another country or territory where P would face a real risk of any harm mentioned in paragraphs (a) to (d).(5) For the purposes of subsection (4)—(a) protection from persecution can be provided by—(i) the government of the relevant country or territory, or (ii) any party or organisation, including any international organisation, controlling the relevant country or territory or a substantial part of it;(b) P is to be taken to be able to avail themselves of protection from persecution if—(i) the government, party or organisation mentioned in paragraph (a) takes reasonable steps to prevent the persecution by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution, and(ii) P is able to access the protection.”Member's explanatory statement
This revised version of Clause 38: (1) removes any reference to “the relevant period”, (2) removes any reference to irreversibility of harm, and (3) removes examples of harm that do not constitute or are unlikely to constitute serious and irreversible harm.

[Lord Etherton (CB)]

My Lords, this amendment relates to serious harm suspensive claims, and it is important because the Government intend that suspensive claims are the only way that removal notices can be challenged. The point I have been concerned with from the beginning is the position of people who are served with a removal notice in respect of a country in which they have a well-founded fear of persecution if removed there, and they would fall within Article 1A(2) of the refugee convention. In other words, vis-à-vis that country, they would be regarded as refugees. Do they have to show in addition, as required by Clause 38(3),

“a real, imminent and foreseeable risk of serious and”—

this is the critical word—“irreversible harm” to succeed on a serious harm suspensive claim? That would be not only novel but against all principle, and the meaning, intent and wording of the refugee convention.

The point has been illustrated—I have tried to illustrate it, and the Government have taken it up—in the particular case of LGBTQ+ claimants. The decision in the case of HJ (Iran) and HG (Cameroon) was that, in order to qualify as a refugee under the convention, it is sufficient that, if they would wish to live openly as LGBTQ, they would face persecution, even if they would not suffer such persecution if they acted discreetly. The question was, if they or somebody from that community were served with a removal notice and it were to a place where members of that particular social group, within the meaning of the convention, would have reasonable fear of persecution, would they have to show in addition that they would suffer irreversible harm, and within a specified period? I urge your Lordships to accept that that would be entirely wrong.

Throughout this debate on the Bill, my understanding has been that the Minister has said that, yes, such a group would have to show in addition that they would suffer irreversible harm. That seems inconsistent with Clause 38(4)(b), which states:

“The following are examples of harm that constitute serious and irreversible harm for the purposes of this Act … (b) persecution falling within … Article 1(A)(2) of the Refugee Convention … where P”—


the refugee—

“is not able to avail themselves of protection from that persecution”.

My heart therefore leapt with joy last Wednesday when I heard the noble and learned Lord, Lord Stewart of Dirleton, who stood in as Minister, say:

“The point I am making is that the serious harm suspensive claim in connection with Clause 38 makes it clear that persecution and onward refoulement are examples of harm that constitute serious and irreversible harm for the purposes of such a suspensive claim.”—[Official Report, 28/6/23; col. 767.]


However, I received a letter sent at 2pm this afternoon from the Minister which seemed to indicate that he was still insisting that, in addition, one would have to show irreversible harm. All I wish to receive from the Minister to avoid a vote on this is an assurance that, where it is clear that there would be persecution of a recognised category within the convention regarding the country specified in the removal notice, that fact alone is sufficient to satisfy the requirements for a serious harm suspensive claim, and that the principle laid down in HJ (Iran) regarding LGBTQ people will continue to apply.

[Lord Hope of Craighead (CB)]

I will speak first to Amendment 131, which would survive even if the amendment to which my noble and learned friend Lord Etherton has spoken were carried and Clause 38 rewritten.

I am seeking to make a very simple point: the power in Clause 39 to

“by regulations amend section 38 to make provision about the meaning of ‘serious and irreversible harm’ for the purposes of this Act”

is unqualified and wide enough to enable the Secretary of State to remove some of the instances of serious harm set out in Clause 38 as it is or as it may be amended. The examples of serious harm given there are absolutely obvious, and they are indeed very serious. It would be a great misfortune if, by some misadventure, the Secretary of State were to remove one or other example from that list for some reason. I would have thought that the Minister could accept the amendment as a sensible qualification of the otherwise unqualified power in Clause 39. I am simply repeating a point I made in Committee, but it is rather important to have clarity on this. The Minister can give an assurance—no doubt he will—that there is no intention to remove examples from Clause 38, but that is not really good enough. It needs to be set out in terms in Clause 39.

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[Lord Murray of Blidworth (Con)]

My Lords, it was remiss of me not to say a little about Amendment 126 and the other government amendments in this group, so I will do so now. These amendments, as I am sure Members of the House have realised, replace a “factual suspensive claim” with a “removal conditions suspensive claim”. Clearly, I and the department listened carefully to the contributions from noble Lords in Committee on these topics about these suspensive claims, in particular those helpful contributions from the Cross Benches. The changes in the category of suspensive claim are a direct reflection of what was said during those debates.

Currently, a factual suspensive claim can be raised where a mistake of fact has been made in deciding that a person meets the four removal conditions in Clause 2. This definition would prevent a claim being raised where a person had been incorrectly identified as meeting the four removal conditions due to a mistake of law. A removal conditions suspensive claim will instead provide for a claim to be raised where a person who has been given a removal notice informing them that they are subject to the duty to remove does not consider that they meet the removal conditions in Clause 2. The Secretary of State’s or Upper Tribunal’s consideration of a removal conditions suspensive claim will be on whether or not the removal conditions were met. I trust these amendments will be welcome, in particular to the noble Lord, Lord Anderson of Ipswich, who queried the scope of these claims in Committee.

I am grateful to the noble and learned Lords, Lord Etherton and Lord Hope, for setting out the case for the other amendments in this group. A serious harm suspensive claim is a claim that a person would, before the end of the relevant period, face a real, imminent and foreseeable risk of serious and irreversible harm if they were removed from the United Kingdom to a country other than their country of origin. The serious and irreversible harm test is designed to be a high threshold and reflects the test applied by the European Court of Human Rights when considering whether to indicate an interim measure under Rule 39 of the rules of court. “Serious” indicates that the harm must meet a minimum level of severity, and “irreversible” means the harm would have a permanent or very long-lasting effect. These amendments seek to change how Clause 38 of the Bill defines the risk of harm, lowering the threshold for a serious harm claim to succeed.

Amendment 130 would remove the requirement for the harm to occur in the period it will take for any human rights claim or judicial review to be determined from the safe third country. I suggest it is reasonable to expect the harm to occur over a defined period. The very purpose of the suspensive claim process is to prevent those persons subject to the duty to remove suffering serious and irreversible harm during the same period that their human rights claims are considered. Without this requirement, it would be difficult for decision-makers properly to assess the likelihood of any risk materialising. It would also risk abusive suspensive claims being made on the basis of a risk of harm that does not currently exist or that may not materialise until months or even years after a person has been removed from the United Kingdom.

Amendment 130 would also remove the requirement for the risk of harm to be irreversible. This would significantly lower the threshold for a serious harm suspensive claim to succeed and undermine the purpose of the Bill to deter illegal entry to the United Kingdom. Again, I would point out that the test applied by the Strasbourg court when considering applications for Rule 39 interim measures is one of serious and irreversible harm. So, the serious harm condition and requirement for the risk of harm to be both serious and irreversible reflects that test.

Lastly, Amendment 130 would also remove specific examples of harm that do not or are unlikely to constitute serious and irreversible harm. Setting out a clear approach regarding the interpretation of serious harm on the face of the Bill will, I suggest to noble Lords, ensure that decision-makers and the courts take a consistent approach in their consideration of what amounts to a risk of serious and irreversible harm. The examples in Clause 38(5) reflect existing case law and go no further than how we currently approach the consideration of these issues when raised in protection claims.

Amendment 131 would prevent amendments to the examples of harm that constitute serious and irreversible harm set out in Clause 38(4), as the noble and learned Lord, Lord Hope, so eloquently set out. I assure the House that the Government do not intend to diminish or remove the examples of harm listed in Clause 38(4).

Amendment 132 would remove the regulation-making power in Clause 39 to amend the meaning of “serious and irreversible harm”. This would result in the Secretary of State being unable to make amendments which reflect developments in case law. It is worth again pointing out that the Delegated Powers Committee raised no issue with this power in its report on the Bill.

Amendment 133 would alter the requirement for a serious harm suspensive claim to include “compelling” evidence of the risk of harm that a person would face if removed to a third country and replace it with a requirement to provide evidence that is “reliable, substantial and material”. I am very grateful to the noble and learned Lord for his remarks on the clarity of those three words, which, of course, will be available in Hansard should any questions arise as to what might amount to “compelling”.

However, although evidence that is compelling may also be defined as evidence that is reliable, substantial and material, a requirement for evidence to be compelling is more appropriate and succinct, given that it is the overall impact of the evidence provided, not any particular element or feature of it, that is relevant. The term “compelling” is sufficiently clear and well understood by decision-makers, and should remain unaltered. It is a term that has use in this area of the law. For example, evidence provided by people raising suspensive claims may differ dramatically in terms of volume and substance, but it is the overall impact of such evidence that is crucial when determining whether any claim has merit. For those reasons, the term “compelling” is more appropriate, providing decision-makers and the courts with the right degree of flexibility when making decisions on suspensive claims and appeals.

Finally, the amendments in the name of the noble Baroness, Lady Meacher, seek to extend the claim and decision periods provided for in Clauses 41 and 45. We consider the periods specified in the Bill to be fair and equitable, affording sufficient time to submit and determine claims, commensurate with the Bill’s objective to remove people swiftly from the United Kingdom. However, I remind the noble Baroness that, where the Secretary of State considers it appropriate to do so, it will be possible to extend both the claim period and the decision period.

For the reasons I have outlined, I respectfully ask that the noble Lords do not press their amendments.

[Lord Etherton (CB)]

I am very grateful to the Minister for his reply. I am afraid he has not answered my request for an assurance at all, so I wish to test the opinion of the House.

--- Later in debate ---

Moved by

[Lord Etherton]

132: Leave out Clause 39
Member's explanatory statement
This amendment removes the power of the Secretary of State to amend section 38 by regulation by making provision about the meaning of “serious and irreversible harm”.

Economic Crime and Corporate Transparency Bill

Lord Etherton Excerpts

Report stage
Tuesday 27th June 2023 Lords Chamber

Moved by

[Lord Etherton]

95: Clause 187, page 176, line 33, leave out paragraph (a) and insert—
“(a) constitutes the offences of fraud, false accounting, money laundering or offences under any binding sanctions regime, whether at common law or in primary or secondary legislation,”Member’s explanatory statement
This amendment provides for a shorter and more focused definition of “economic crime” than is presently to be found in Clause 187(1) and Schedule 10.

[Lord Etherton (CB)]

I tabled all the amendments in this group. I am very grateful to those who have added their names to them: the noble Lords, Lord Verdirame, Lord Pannick and Lord Anderson of Ipswich. I am also very grateful to the Minister, the noble and learned Lord, Lord Bellamy, for meeting me and senior representatives of the Law Society and of the Bar Council to discuss what is now Clause 197.

All these amendments relate to the new regulatory objective in Clause 197 that amends the Legal Services Act 2007 by inserting for the Legal Services Board a new objective:

“promoting the prevention and detection of economic crime”.

As I said in Committee, this proposed new regulatory objective is extraordinarily wide and imprecise. The meaning of the word “promoting” lacks any clarity or certainty. It raises legitimate concerns about a potential lack of proportionality and overregulation by regulators, and about a lack of evidential risk as to those sectors most likely to come into contact with economic crime—for example, advisers rather than advocates. And even in the area of advisers, it is hardly likely to involve experts in the environment or town planning.

As the MoJ’s impact assessment of the new regulatory objective makes clear, the front-line regulators of the legal profession are already implicitly under a duty to ensure that lawyers are not breaching economic crime rules. The provisions in Clause 197 are merely to make explicit what is already implicit, and it is important that the Legal Services Board and the front-line regulators understand that this is the case.

The definition of economic crime for the purposes of Clause 197 is provided in Clause 187(1) by mean of cross-reference to Schedule 10, which contains a long list of statutes. This provides no focus on what is really at issue and should be the concern of regulators. That is spelled out clearly in my Amendment 95—namely,

“the offences of fraud, false accounting, money laundering or offences under any binding sanctions regime, whether at common law or in primary or secondary legislation”.

This lack of focus could well promote overregulation and a lack of proportionality.

What is needed is a clear statement from the Minister, which I would very much welcome today, on the following. First, regulators must understand that this is not a new regulatory duty but one that states explicitly what is already implicit. Secondly, there should be a focus on the particular criminal activity which is relevant: fraud, false accounting, money laundering and offences under any binding sanctions regime. Thirdly, there is a need for evidence-based regulation according to evidence of risk in particular areas of work and practice, as I described, such as transactional work rather than contentious and court-based work, and areas of advisory work which might be relevant in which economic crime might well occur. Fourthly, there will also be a need for proportionality by regulators. Fifthly, the regulators must understand, as the Minister said before, that there is to be no interference with the principle of legal professional privilege. Finally, there is a need for consultation with the profession to ensure that the new objective successfully tackles economic crime in the proportionate and evidence-based way I have described.

I hope the Minister will be able to make those points clear to the profession to enable a proper regulatory framework to work. I beg to move.

[Lord Bellamy (Con)]

I thank the noble and learned Lord, Lord Etherton, for his engagement on this topic throughout the Bill and for his remarks today. I briefly reiterate that the definition of economic crime is deliberately widely drawn. It applies not only to the regulatory objective but to several other clauses of the Bill, including the information-sharing measures between various financial institutions at Clauses 182 and 183. The Government do not believe that restricting that definition would be right.

It is true that there is a long list of offences in Schedule 10, including the reference to theft. Sometimes it is difficult to distinguish between fraud and theft, but I am happy to acknowledge that typical forms of theft, including low-level theft such as shoplifting or street crime or similar activities, are most unlikely to be relevant to anything in the Bill. Therefore, the Government do not feel able to change the definition of economic crime specifically for the legal sector, and the regulators must be able to respond to circumstances as they develop.

I shall address in a little more detail some of the points raised by the noble and learned Lord, Lord Etherton, this afternoon. I hope to cover all those points one way or another. First, in relation to legal professional privilege, the regulatory objective already requires adherence to professional principles under the Legal Services Act. In the Government’s view, there is no need for a specific reference to legal professional privilege, but I can make it absolutely clear that the Government do not consider that the Bill makes any difference to the principle of legal professional privilege. It is in no way an assault or attack on that fundamental principle of English law. The protection of legal professional privilege, as developed in the courts, will continue to apply in this area, as in many other areas. That is the Government’s position, and I hope that it is clear

As to how the regulatory objective and the provisions of the Bill will operate in practice, and in response to the noble and learned Lord, Lord Etherton, who made various entirely fair points, the intention and purpose of the regulatory objective is to put the onus on legal services regulators to be active in promoting and upholding adherence to the economic crime regime. The new objective will put beyond doubt and clarify that securing compliance is explicitly part of the regulatory role. We expect regulators to use all the tools available to them, but their activity should be appropriately targeted and not in any sense just a box-ticking exercise. The objective does not directly place new duties on lawyers. It is directed to the legal services regulators, and existing safeguards remain.

All those regulators will still be bound by public law principles, which will ensure that any regulation of legal services is proportionate and fair. Proportionality is particularly important. Section 3 of the Legal Services Act already requires the Legal Services Board to have regard to the principle that regulatory activity should be transparent, accountable, proportionate, consistent and targeted only for cases where action is required. The new regulatory objective on economic crime fits within this framework and existing objectives, such as supporting the rule of law, promoting the public interest and improving access to justice.

It is understood and expected that the Legal Services Board will work closely with the professions in developing guidance to support the new objective. This will include a public consultation on any necessary policy statement or guidance to ensure that the regulatory objective is implemented in a targeted and proportionate way. This will allow the LSB to capture and analyse any concerns that professional bodies or others may have, or continue to have, in relation to the new objective.

--- Later in debate ---

I hope that I clarified those aspects and, with these reassurances, I hope that the noble and learned Lord may be persuaded to withdraw his amendments.

[Lord Etherton (CB)]

I am extremely grateful to the Minister for all those assurances. They are extremely helpful, and I do think that they will assist in settling the concerns of many of those in the legal profession. On the basis of the assurances that he has given, I am very happy to indicate that I will withdraw my amendment.

Amendment 95 withdrawn.

Illegal Migration Bill

Lord Etherton Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

[Baroness Ludford (LD)]

I warned your Lordships that I would keep popping up this evening, but I am glad to say that the cavalry is coming to my assistance. On the Bench opposite there are all my legal heavyweight friends who are going to row in on this issue. In moving that Clause 37 should not stand part of the Bill, I shall speak similarly with regard to Clauses 38 to 42 and in support of my Amendments 114 and 115 as well as all the other amendments in this group.

At the moment, under existing law, a human rights claim would effectively suspend a claimant’s removal; the suspensive effect of a human rights claim is a crucial safeguard against individuals being removed to face human rights abuses before the validity of their claim has been established. As was referred to in earlier groups, we on these Benches believe that pursuing a claim from another jurisdiction is likely to be very difficult and in some cases impossible. We were talking about trafficking victims earlier, but I contend that it applies to anyone trying to pursue a claim from abroad. The European Court of Human Rights has held that the right to an effective remedy under Article 13, taken together with Articles 2 and 3, guarantees the ability to present an asylum claim effectively. We would say that you cannot do it effectively if you are outside the country.

Clause 4 of the Bill makes it clear that the Clause 2 duty on the Secretary of State to make arrangements for removal will still apply to a person making a claim that removal would violate their human rights. The continuing application of the duty means that, under the Bill, these claims would all be non-suspensive. The Bill provides narrow exceptions to this non-suspensive effect by establishing two categories of suspensive claims that prevent the removal of the claimant while they are ongoing: the serious harms suspensive claim and the factual suspensive claim. These are the only ways in which anyone who satisfies the Clause 2 conditions—whether they are seeking asylum, have been trafficked or have otherwise come without permission—would be able to challenge their removal before it takes place. Even a successful claimant will remain subject to the Secretary of State’s removal duty and prohibition on getting leave to enter or remain under Clause 29, as we have just been discussing, and will thus remain in a state of limbo regarding their immigration status—at least theoretically still awaiting removal—so it does not necessarily solve the problem. Most human rights claims will stay non-suspensive and have to be pursued from outside.

I turn to the test for these suspensive claims, which I think is where some of the amendments come in. The test established in the Strasbourg court is where substantial grounds have been shown for believing that the person in question would face a real risk. However, this appears to mean that individuals who can establish a real risk of treatment contrary to Articles 2 or 3 but cannot establish that it is imminent would still be removed under this Bill and left to pursue their claims from overseas. The JCHR says, and we on these Benches agree, that this would likely breach the Government’s obligations under the ECHR—the convention to which the Government are newly converted.

Another problem is that a serious harm suspensive claim would have to contain compelling evidence that the serious harm condition is met. This appears to be a new evidential standard created by this Bill. Freedom from Torture told the JCHR that this amounts to

“an extremely high evidential threshold which may, in fact, be higher than ‘real risk’ or even ‘the balance of probabilities’. How an individual who has just fled persecution could provide evidence to this threshold is unclear”.

The next problem is that the Bill retains a power for the Secretary of State to make provision about the meaning of “serious and irreversible harm” in regulations. Our Constitution Committee considers that

“the implications of this definition are so significant that it should be amended only by primary legislation unless any delegated power to do so is limited to prevent fundamental risks of harm being removed from the definition”.

The committee supports my proposition that Clause 39 should be removed from the Bill or heavily circumscribed.

This is also the subject of criticism by the JCHR. Not only does the committee

“urge the Government to reconsider its decision to make human rights claims non-suspensive, and the extremely high threshold imposed to establish serious harm suspensive claims”

but it believes:

“The meaning of ‘serious and irreversible harm’ should not be open to amendment by regulations”


and:

“Clause 39 should be removed from the Bill”.


Lastly, timeframes are the subject of my Amendments 114 and 115. In the Bill, the Government are imposing very tight timescales: the lodging of a claim within seven days following receipt of the notice, a decision within three days and appeal to the Upper Tribunal within six days. My amendments aim to increase both the claim and the decision deadlines to 30 days. All in all, my amendments in this group, with the support of other noble Lords, are designed to restore better fairness to the possibility of people appealing against removal. I beg to move.

[Lord Etherton (CB)]

My Lords, I will speak to a number of amendments in my name in this group: Amendments 100, 102, 103, 104, 105, 107, 108, 109, 111 and 112, all of which are supported by my noble friend Lord Carlile of Berriew, who is a co-signatory. I am grateful to him and to the noble Lord, Lord Cashman, who has also supported one of them. I am also grateful to the Minister for a remote meeting with me to discuss my amendments, which I appreciated.

We are here dealing with the situation where a person claiming refugee status has been given a third country removal notice. That notice will be for removal to a country specified in Schedule 1, and the refugee claimant has a well-founded fear of persecution if they are removed to that country. Under the Bill, the removal notice can be challenged only by a serious harm suspensive claim. The serious harm condition is defined in Clause 38(3): the person claiming refugee status must, within a specified period called “the relevant period”,

“face a real, imminent and foreseeable risk of serious and irreversible harm if removed … to the country or territory specified in the third country removal notice”.

The majority of my amendments in this group focus on the inappropriateness of the requirement to show an imminent risk of “irreversible” harm within a specified period.

The first point to note is that, by way of general observation, whereas the serious harm suspensive claim focuses on the situation of an individual claiming refugee status, the well-established approach both internationally and under our own jurisprudence is to ask, in the case of a “particular social group” within Article 1A(2) of the refugee convention, whether the members of that group have a well-founded fear of persecution by virtue of being a member of that group.

Secondly, that change in approach is explained by the appearance, for the first time, of a requirement for an individual claiming refugee status to be able to resist removal to an otherwise unsafe country only if they can additionally show that they would personally suffer serious and irreversible harm. There is no such requirement in the refugee convention or in any jurisprudence of our own courts or, so far as I am aware, those of any other country.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I am grateful for that suggestion from the noble and learned Lord. If I may, I will take a moment to reflect on that and will revert to him in relation to it.

Amendments 114 and 115 would significantly increase the timescales for making and deciding a serious harm suspensive claim, undermining the fast-track process that we have created in the Bill and our ability swiftly to remove illegal entrants. Where the Secretary of State considers it appropriate to do so, it will be possible to extend both the claim period and the decision period. Legal aid will be available to assist a person in receipt of a removal notice in making a suspensive claim. With these safeguards, I suggest to the Committee that it is reasonable to expect a person to bring a suspensive claim within the time periods set out in the Bill. I hope that that addresses the point made by the noble Baroness, Lady Ludford.

The purpose of the Bill is to ensure that illegal entrants are removed as quickly as possible. Extending the decision and claim periods to a total of 60 days for all cases increases the risk that immigration bail would be granted by the First-tier Tribunal and, where bail is granted, that a person would disappear into the community in order to frustrate their removal. The use of detention is therefore necessary to make sure that they are successfully removed from the UK, and our ability to detain a person is dependent on any suspensive claim being both considered and decided quickly. The timeframes outlined in the Bill send a clear message that if you arrive in the UK illegally you will be swiftly removed.

The noble and learned Lord, Lord Hope, referred to the Constitution Committee’s recommendation that the regulation-making power in Clause 39 should be removed from the Bill. We are considering that committee’s recommendations and will respond before Report stage. I would, however, comment that the Delegated Powers Committee did not comment on this power.

The amendments put forward would undermine the suspensive claims procedure and the timeframes outlined in the Bill, where what this Government need to do is send a clear message that if you arrive in the UK illegally you will be swiftly removed. For the reasons that I have outlined, I ask that noble Lords do not press their amendments.

[Lord Etherton (CB)]

Before the Minister sits down, there were two specific questions that I raised at the end of what I said that I would like an answer to. I do not believe that he has answered them at the moment.

The first is confirmation that there is nothing in the Bill that in any way derogates from the decision of the Supreme Court in HJ (Iran) that a person qualifies as a refugee under our jurisprudence if they would face persecution living openly as an LGBT person. This is relevant to the question of serious irreversible harm, the question being whether it is the Government’s view that you would have to, if necessary, act discreetly and that, if you acted discreetly, the harm would not be suffered. Is it intended, through the Bill, to undermine this landmark decision of the Supreme Court?

The second point on which I would like a specific answer was similarly in relation to the UNHCR’s latest advice—from 2023, I think—about what constitutes an appropriate flight alternative. Where would it be appropriate to deny refugee status because there is a place within a territory or country where there would be no persecution and where it would be reasonable for the person in question to live in an ordinary way?

[Lord Murray of Blidworth (Con)]

I thank the noble and learned Lord for repeating those questions. He is entirely right that I should have answered them; I apologise for not doing so.

The short answer is that this is a separate strategy regime to the one that the case of HJ (Iran) was decided under. Of course, although the findings in that case and the line of cases concluding in that case would be relevant, the decision will always be taken on the facts of each case. I cannot, I am afraid, give the noble and learned Lord an undertaking on what he might perceive to be an inconsistent decision in relation to that case. I am happy to look into it further and will write to him about that, but that would certainly be my instinctive reaction.

In relation to the further report from the UNHCR, again, each of these matters is fact-sensitive to each serious harm suspensive claim. It would not be right for me to try to predicate at this Dispatch Box what the outcome might be.

[Lord Etherton (CB)]

I am sorry to come back on this, but it is important. The Government must give some guidance to the judges of the Upper Tribunal who try these cases with these novel and, if I may say so—I am adopting the approach of the noble Lord, Lord Carlile—complicated provisions. These are new provisions that are not found anywhere else in our jurisprudence or in anybody else’s. We are talking about a special type of irreversible harm that has to be predictable. Any guidance that we can give on how the existing jurisprudence and UNHCR advice would still apply will be extremely important for the actual mechanics of delivering justice in these cases.

[Lord Murray of Blidworth (Con)]

I can only repeat that the Supreme Court decision in HJ (Iran) and the other documents provided by the UNHCR are not relevant in this context because they do not deal with the same mechanics. Those cases were asylum or protection claims, whereas this deals with the specific statutory category of serious and irreversible harm. Of course, although there may be some crossover in the arguments deployed, ultimately they address a different issue. I cannot provide the type of assurance that the noble and learned Lord seeks, I am afraid.

Illegal Migration Bill

Lord Etherton Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

It is the concern of several of us that the proposed new regime of detention facilitated by the Bill does not distinguish whether you are a child, a victim of trafficking or a pregnant woman, and that you will be subject to initial detention of not less than 28 days. Due to the ouster clause, there are also no means for anyone to challenge the lawfulness of the Government’s action, putting it beyond legal remedy. It is therefore of the utmost importance that we understand the legal framework that will be put in place to ensure that detention and safeguarding standards are established, and that detention sites are designated by law, not by expedient, as suitable.

[Lord Etherton (CB)]

My Lords, Amendment 69 is in my name. I am very grateful to those who have co-signed it: the noble Lord, Lord Carlile, the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Cashman.

The amendment provides for a general standard or series of standards to be applied—to some extent, picking up some of the more specific points that have been raised by other Members of the Committee. The amendment says:

“The conditions under which persons are detained pursuant to this section must comply with United Nations High Commissioner for Refugees Detention Guidelines”.


This becomes particularly important in the context of this proposed legislation because there is no time limit currently provided for detention. Indeed, earlier today, the Minister, the noble and learned Lord, Lord Bellamy, made great play of the fact that currently Rwanda is the only country in Schedule 1 which has actually signed up to admit people and therefore the rest of the people are not going to be accommodated by way of a removal.

People who are not suitable to go to Rwanda, which, according to the FCDO’s travel guidelines, would certainly include LGBT people, would be subject to indefinite detention until some other arrangement—if and when, if ever—with a truly safe place for that group was arrived at.

The UNHCR’s refugee Detention Guidelines currently set out, in guideline 8, some 18 minimum conditions of detention. They range from general propositions on treating asylum seekers with dignity to conditions around medical treatment; the ability of persons resident in detention to make contact; physical exercise; for children, education and vocational training; standards of food; and so forth. We certainly know that, on the ground at the moment, those standards are not being adhered to in the accommodation currently being occupied by those who seek asylum.

The time has come—particularly in view of the possibility of detention without any limit whatever; although that issue is going to be dealt with in a later group, I might add that it is in itself contrary to guideline 6 of the UNHCR’s refugee Detention Guidelines —when the Government must commit themselves to the minimum recognised standards that apply to asylum seekers. As others have said, we are not just dealing with numbers—number 1,231, for example. Each of these cases is a human being deserving of dignity and proper treatment.

Those are the minimum standards set down in guideline 8. I would like to know whether it is the Government’s proposal that they should adhere to these minimum standards.

[Baroness Chakrabarti (Lab)]

My Lords, I rise in support of the noble and learned Lord, Lord Etherton, whose Amendment 69 I have signed. It would require detention conditions to comply with those set out in guidelines by the United Nations High Commissioner for Refugees. I need not repeat the arguments that the Committee well understands about the United Kingdom’s historic role in the refugee convention and other aspects of the post-war human rights settlement.

Like many noble Lords in this Committee, I have been in these debates for some time, so I understand that there is some dispute on the Government Benches about the UNHCR. The UNHCR says something; they say, “So what? It is just another woke NGO”. Well, it is not. The UNHCR has a special role in the convention. It is a UN body and it was given a special role in the supervision of the refugee convention.

I simply refer noble Lords to Article 35 of the convention, headed “Co-operation of the national authorities with the United Nations”. We were an architect of the convention and a key signatory to it; I am sure that every Member in this Committee wants to abide by it. Article 35 states:

“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention”.


This body was given from the beginning the very special role of supervising the convention. That is fair enough, is it not? It cannot just be that every nation gets to interpret the convention in its own way; that would not exactly be global governance.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I am not focusing on the supervisory duty. For these purposes it does not matter whether we have a duty to co-operate once a month or once a day, or to get in touch with it every half an hour. That is just on the scale of the nature of the co-operation duty. My point, and I submit that it is a fundamental one, is that there is a difference in essence—a conceptual distinction—between a co-operation duty with the UNHCR as to whatever the treaty means and agreeing that whatever the UNHCR says the treaty means is what it means. It is not an accident that interpretation was excluded from Article 35. Having made that point about five times, I will sit down.

[Lord Etherton (CB)]

Perhaps I could just add to all of this. I am sorry to do so; it is a bit unseemly for the lawyers to start arguing among themselves but I think I ought to record that I do not agree with the proposition of the noble Lord, Lord Wolfson, that the effect of Article 31 of the Vienna convention means that this country or any country can give to such a refugee convention any meaning it wishes to. It has to apply, under Article 31 of the Vienna convention, the wording of the refugee convention, bearing its ordinary meaning in the context of what it proposes.

This is a sideline. The Committee needs to concentrate on what the role of the UNHCR is. I think that it is perfectly obvious to virtually everybody that it has a special supervisory role under the refugee convention, as interpreted in accordance with the Vienna convention, in the application and the practical application of the refugee convention. What I was talking about in my amendment, supported by the noble Baroness, Lady Chakrabarti, was giving due weight to such a body. There is no other body that has that role. This body does, and it has been given by the United Nations.

--- Later in debate ---

[Lord Etherton (CB)]

I asked whether confirmation could be given that the Government will adhere to the 18 minimum conditions in the UNHCR Detention Guidelines. It would be very helpful for the Committee to know specifically which ones they intend to comply with and which they do not.

[Lord Murray of Blidworth (Con)]

As I have already indicated, the standards that will be adhered to are those prescribed already in legislation. While the points set out in the UNHCR’s document map on in some respects, there is no exact overlap. The regime which will be applied is that which I have already described.

Illegal Migration Bill

Lord Etherton Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Lord Sandhurst (Con)]

I am obliged. So there we are.

[Lord Etherton (CB)]

I have a very short point to make. I was delighted to hear the noble Lord, Lord Hodgson of Astley Abbotts, say that he was a great fan of the rule of law, but he, like the noble Baroness, Lady Fox, seems to think that it is something that can be moulded in accordance with political desire in Parliament. We should be quite clear about this, and the point is not a difficult one.

The rule of law is made up of various ingredients. One of those ingredients is compliance with international obligations. If you do not like the obligations and wish to comply with the rule of law, you either secede from the convention or international obligation or you change it. So long as it is there, you have to comply with it if you want to say that you are a country that observes the rule of law. We are a leading world democracy. If we do not abide by the rule of law, we place ourselves in the company of numerous rogue nations. This country deserves better than that.

[Lord Griffiths of Burry Port (Lab)]

I feel a little intimidated to follow such an intervention. I am not a lawyer either, but I am a member, as I have said repeatedly in the past, of the delegation from this Parliament to the Council of Europe; and I can attest, from conversations I have had in its migration committee, plenary sessions and other meetings in Strasbourg and other parts of Europe, that there are a number of countries in Europe at the moment that are looking to us to uphold standards that will give them the courage to maintain their current position with regard to these conventions. It is a very perilous moment. Our role in Europe is key to keeping quite a lot of others on board, and I want to emphasise that.

I feel it almost impossible for me to want to give even a shred of support to a Bill that, as has been quoted, has as its preface a statement by the Minister that he cannot give any guarantee, et cetera. I find myself at a loss to be looking at a piece of legislation—a law that will go on to our statute books—that begins this process with this degree of ambiguity written into it. Can lawyers not give the rest of us a starting point more certain than that?

Finally, let me say at this point that, long before I got involved in European matters, I had a lot to do with migration from Haiti to the United States, which is not a signatory to the convention. The methods open to countries that are not signatories to the convention are not pleasant at all, and I simply would not want the United Kingdom to have the opportunities to behave in that way.

Illegal Migration Bill

Lord Etherton Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I will quickly speak on Amendment 12, otherwise I fear there will not be a second voice in support of the very important issue of the potential impact of the Bill in respect of Northern Ireland. The Northern Ireland Human Rights Commission has pointed out that the human rights memorandum does not include an assessment of compliance of the Bill with Article 2 of the Windsor Framework, so my first question to the Minister is: will that memorandum be amended to include such an assessment?

The Bill raises significant concerns about compliance with the Belfast/Good Friday agreement and with the Windsor Framework, because the incorporation of the European Convention on Human Rights into Northern Ireland law was an explicit commitment of the Good Friday agreement and was achieved through the Human Rights Act. The Bill would constitute a breach of two core elements of this commitment: the guarantee of direct access to the courts and the obligation to provide remedies for breach of the convention, under the relevant chapter of the agreement. That chapter extends to everyone in the community, which includes asylum seekers and refugees.

I believe the Bill is also inconsistent with obligations under Article 2 of the Windsor Framework, which details various equality and non-discrimination EU directives with which Northern Ireland must keep pace. This includes the victims’ directive and the trafficking directive. The potential for the Bill to lead to failures in identifying and supporting trafficking victims, as well as the provisions on detention and removal, would place Northern Ireland in direct contravention of those directives. I believe that the Government’s explainer document on the Windsor Framework, Article 2, acknowledges that its protections apply to everyone who is subject to the law in Northern Ireland. Asylum seekers are part of the community and therefore protected by the Rights, Safeguards and Equality of Opportunity chapter of the Good Friday agreement. I understand that in ongoing court proceedings—I prefer “continuing” court proceedings—the Home Office has not disputed the argument that the protections of the relevant chapter of the Good Friday agreement extend to asylum seekers and refugees.

The Bill instructs the Secretary of State to declare inadmissible any claim that removal of an individual would breach their convention rights, if that individual met the extremely broad criteria covered by the duty to remove. It says that this inadmissibility cannot be appealed, so if those provisions were applied to someone arriving in Northern Ireland, it would be a direct breach of the Belfast/Good Friday agreement because it makes convention rights inaccessible and restricts that individual’s direct access to the courts and remedies for breach of the convention. Also, the application of the Bill to land border crossings could constitute a breach of Article 2 of the Windsor Framework and indeed of its very objectives.

To try to compress all that down, it is a matter of considerable concern that there is a failure to address compliance with Article 2 of the Windsor Framework, and more broadly with the Good Friday agreement, in the human rights memorandum to the Bill. I will end where I started, which is to ask the Minister whether such an assessment is going to materialise.

[Lord Etherton (CB)]

My Lords, I have co-signed the amendment in the name of the noble Lord, Lord Carlile or Berriew, and that in the name of the noble Lord, Lord Cashman. I will make some very brief comments on both.

The principle against retrospection in statutory provisions is very long-standing and well-established because it upsets settled status and settled rights. It follows that it can, save in exceptional circumstances, operate both unfairly and so as to create legal uncertainty in the way that people conduct their affairs.

The best example of where retrospection would be appropriate is in relation to a finance Bill and Act giving effect to a Budget, with the time lapse between the two enabling people to enter into tax avoidance arrangements. But here it would be utterly impossible—certainly without any credibility—to suggest that those who are either crossing the channel or promoting that crossing unlawfully or illegally have organised their affairs, or were ever likely to organise them, on the basis of the complex provisions of this statute. I have never heard anybody suggest to the contrary. For my part, I can see absolutely no sound reason why the normal rule—which is one of fairness and certainty, as I said—should be upset in this case.

I support the amendment in the name of the noble Lord, Lord Cashman, because extending the definition of the third condition to include gender identity and sexual orientation brings to the forefront something which has plainly been ignored in the drafting of the Bill. There is absolutely nothing in Schedule 1 which excludes from the places to which people can be removed those LGBT people who would undoubtedly face extreme persecution, varying from sentence of imprisonment to death and assault. Raising this issue here will, I hope, direct the Government and the Bill team to a serious lacuna in the legislation.

[Lord Hope of Craighead (CB)]

My Lords, I can be very brief. I have one amendment in this group, Amendment 39, which raises the same point as Amendment 6 in the name of the noble Lord, Lord Carlile of Berriew, on retrospectivity. I support all the amendments in his name to that effect. The only point I would have added would have been to read out my explanatory statement, which my noble friend Lord Kerr of Kinlochard has already done, placing particular stress on “for good reason”. If the Minister is not going to accept these amendments, I hope he can give the good reason in each case.

Economic Crime and Corporate Transparency

Lord Etherton Excerpts

Committee stage
Thursday 27th April 2023 Grand Committee

If they are not already doing so, I suggest the Government adopt that approach to economic crime, in full, and that they bring to Parliament, if they need to, changes in legislation that will interdict this behaviour at the earliest possible stage of that pathway. If we do that, we will not spend—as we otherwise will—a long time talking about accountability, recovery of money and all the things that are most expensive and difficult to achieve. That is how we could easily save the bulk of the £350 billion that economic crime is costing this country.

[Lord Etherton (CB)]

My Lords, I hope that noble Lords will permit me to speak now, because I may not be able to stay for the whole of the debate on this group. I apologise to those who still have to speak to their amendments. I will comment on two aspects of these amendments. The first is the carve-out for organisations that are not large.

The original legislation that provided for a prevention of crime scenario was the Bribery Act 2010. I was the chairman of the Law Commission when that project began, under pressure from the OECD on the Government because of this country’s poor rating on bribery. As at least two noble Lords have pointed out, there was no carve-out for small organisations. I am satisfied in my own mind that, had we created such a carve-out, it would not have satisfied the OECD. It is important that there be consistency in the law. If there is to be a change from the position on bribery to the position here on fraud, there must be a good reason to do so. To produce inconsistency in broadly comparable situations seems bad law. That is the only thing I wanted to say about that.

As a member of what I am afraid the noble and learned Lord, Lord Garnier, would describe as the legal establishment, I urge some caution in changing the principles of vicarious liability in relation to criminal responsibility for companies. Again, the question of consistency is important; if this is to move forward, we must look at the ramifications across the whole of criminal law, and there has to be a very good reason why this area is selected for different treatment. I know that this is anathema to so many people here, but it would be a good subject for the Law Commission to look at. Of course, it would not be able to do so by Report. However, if the proposal has merit, it warrants a much wider investigation for its impact elsewhere.

[Lord Agnew of Oulton (Con)]

My Lords, first, I congratulate the Government on bringing forward an amendment—it is at least a start. My noble friend the Minister said that he enjoys a lively debate and was looking forward to another one today, so I do not want to disappoint him. I speak as an SME; cut me in half, and that is what I am, and have been all my life. Indeed, my interest in SMEs long predates my noble and learned friend Lord Garnier’s interest in bribery, as I set up my first business in 1978.

My point is that I absolutely understand how SMEs think, so it is not credible to say, “Oh, we must protect them”. For a start, the way in which the categories are set excludes probably 90% of businesses in this country. I cannot work it out exactly, but it is the vast majority of commercial activity, so that makes a nonsense, frankly, of what is being suggested. On the fair application of law, to respond to my noble and learned friend Lord Garnier, a 5 foot 3 inch burglar can do just as much damage as a 6 foot 6 one. There is no logic to that—and I speak not as a lawyer but as a simple businessman.

More profoundly, unless we bring about this culture change, we are not going to get the SME community to think about fraud. If you are a victim of fraud and have the mechanisms in place to detect it because of other people doing it to you, you are far less likely to have it committed against you. All we are doing is creating an artificial bubble for people who are victims. I keep banging on about this figure, but 40% of crime in this country is now economic crime, of which fraud is a large part. So as for the idea that we are protecting SMEs in any way—we are not.

Perhaps the most important element is the professional enabler—the accountant and solicitor. We heard from the noble and learned Lord, Lord Thomas, the other day that the behaviour of the legal profession is not perhaps as pristine as it was 20 years ago. If it can take short cuts because someone looks like a juicy client, then the temptation exists. Only 100 of the 10,000 law firms in this country would have to comply with this carve-out—so that is nonsense, too. Then we come to public procurement. I was procurement Minister, and we have had a great success in government in the last few years, doubling the amount of money going from public procurement to SMEs from £20 billion to nearly £40 billion. If this provision comes in, it will have a kind of freezing effect on government. I know what officials are like—they are very cautious people and, if they feel they are taking a risk by contracting with SMEs because they, in turn, are not doing proper fraud checks, it will be another reason not to use them. So there is that perverse impact.

If we go a bit further, large corporations will find ways round this. They can create separate subsidiaries and they can use all the things we have been talking about, such as different ownership in different jurisdictions, so this will not solve the problem. The point has also been made about inconsistency: bribery has not had a carve-out for SMEs, so why should this? I ask my noble friend to put a cold towel round his head and those of his officials and come up with a credible explanation.