Death of a Former Member: Lord Tebbit
The Lord Speaker (Lord McFall of Alcluith)
My Lords, I regret to inform the House of the death of the noble Lord, Lord Tebbit, on 7 July. On behalf of the House, I extend our condolences to the noble Lord’s family and friends.
ARIA: Scoping Our Planet Programme
(1 day, 17 hours ago)
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Lord Clement-Jones
To ask His Majesty’s Government what assessment they have made of the Advanced Research and Invention Agency’s handling of an Environmental Information Regulations request regarding its “Scoping Our Planet” programme.
The Minister of State, Department for Science, Innovation and Technology (Lord Vallance of Balham) (Lab)
ARIA fully complies with its responsibilities under the Environmental Information Regulations. ARIA is committed to transparency; it publishes regular information on its programmes in its annual reports and accounts, in the corporate plan and through the quarterly transparency disclosures on its website. It publishes its responses to all EIR requests.
Lord Clement-Jones (LD)
My Lords, the Minister mentions ARIA being committed to transparency, but that highlights the fact that it is not subject to the general freedom of information provisions under the ARIA Act. I note that on Report on the ARIA Bill the Labour Opposition Front Bench signed and supported in a Division an amendment tabled by me to bring ARIA into the provisions of the Freedom of Information Act. In fact, the noble Baroness, Lady Chapman of Darlington, said:
“The Government’s determination to keep ARIA’s projects and decision-making secret is worrying. This is a matter of principle: do they believe in transparency, or not?”—[Official Report, 14/12/2021; col. 209.]
I can now ask the same question of this Labour Government: do they believe in transparency? Will they bring ARIA within the Freedom of Information Act?
Lord Vallance of Balham (Lab)
I thank the noble Lord for his question. I know that he is prone to shaking his head when Ministers answer. I fear that I may give him a neck injury during this answer.
Of course we are committed to transparency, but we have no plans to bring ARIA into the scope of the FoI Act. ARIA is a unique organisation with unique freedoms; it has been designed deliberately to be a small, agile body with limited administrative capacity so that most of its efforts can be spent devoted to finding the answers to some of the missions that it funds —long-term transformation research for the benefit of the UK. However, both the Government and ARIA understand the importance of transparency, and ARIA publishes all its information on recipients of programme funding, transactional information on its operational costs, and data on the regional distribution of its programmes and funding. It complies with the Environmental Information Regulations, is audited annually by the NAO, and publishes its annual reports and accounts.
Lord Patel (CB)
My Lords, I support what the Minister just said about the transparency that ARIA has managed to establish, despite the absence of freedom of information legislation. Its work in terms of requests for research and the research funding awarded are all available on its website. Would the Minister agree that ARIA has been a great success hitherto in establishing strong co-operation and relations, nationally and overseas, and bringing in some inward investments from overseas? The current CEO, Ilan Gur, should be congratulated on doing so, as he is leaving his job for personal reasons to go back to the United States.
Lord Vallance of Balham (Lab)
I thank the noble Lord for his comments. I agree that ARIA has got off to a tremendous start under the leadership of Ilan Gur, who will leave his role when a new CEO is appointed—he will stay up until that point. ARIA has done a number of things, including training a whole group of people who otherwise would not be entrepreneurial scientists to be entrepreneurial scientists. Eight new start-ups have occurred as a result of this, and seven UK subsidiaries of global companies have come to the UK. The projects are all at an early stage, but there are some very exciting pieces of work that are now recognised and admired globally.
Lord Watts (Lab)
My Lords, have the Government looked at the implications of AI for the Freedom of Information Act? Someone could quite possibly generate 100,000 questions in about half an hour, which will put pressure on the public sector.
Lord Vallance of Balham (Lab)
I have not looked at that specific point, but I accept that that is indeed a possibility. The Freedom of Information Act has an enormous number of important roles, but it can be overwhelming. That is another reason why a very small organisation such as ARIA, which is focused on getting its work out while being very transparent about what it is doing, is freed from some of the requirements of that Act, which can place a very large administrative burden on a small organisation.
Lord Reid of Cardowan (Lab)
My Lords, when the Minister is considering whether to apply freedom of information, will he consider the learned comments of the former Prime Minister who introduced it, Mr Blair, who described it as the worst mistake he ever made?
Lord Vallance of Balham (Lab)
I will not get into whether it was or was not that, but I say again that we have no plans to bring ARIA under the Freedom of Information Act, which I think is important. If we go back to the origins of ARPA—the organisation in the US that led to DARPA, IARPA and many other such organisations on which ARIA is based—its originators in the 1950s and 1960s said that the reason no other country had managed to emulate that successful programme was because they kept everything on too short a leash. We should not make that mistake.
The Lord Speaker (Lord McFall of Alcluith)
I am sorry; I have been told the clocks are not working. There has been a little bit of a mix-up but we will get there.
Lord Grocott (Lab)
I have a question for the Minister; I am pretty sure that the answer will be that he has no idea, and that will not be any reflection on him because I do not have any idea either. What has been the total cost to the public purse of the implementation of freedom of information legislation for all the numerous organisations, large and small, across the public sector?
Lord Vallance of Balham (Lab)
Perhaps unsurprisingly, I do not carry that figure in my head. I can tell my noble friend that ARIA has spent 300 hours over the past few months dealing with requests under the Environmental Information Regulations alone, so he can imagine the scale of requests that can come through other things. I am sure the cost of providing information requests to public bodies has been very high.
Viscount Camrose (Con)
My Lords, when Ilan Gur recently and sadly announced that he intended to step down as CEO of ARIA, he said that his role was always intended to be time-bound. That being the case, was a succession plan in place to appoint his replacement? Once a new CEO is appointed, will the Government strain every sinew to make sure that a succession plan is in place for their successor?
Lord Vallance of Balham (Lab)
It has been known for a little while that Ilan Gur would return to the US, where his family is now back. I know, because I was on the board of ARIA for a period before I took up this post, that there were lots of discussions around succession planning. I am sure there will be succession planning in the future as well. What is important—this is why the announcement has been made in this way—is that Ilan is clear that he will stay until the new person is in place.
Lord Clement-Jones (LD)
My Lords, the Minister’s arguments are sounding dangerously like those made by the noble Lord, Lord Callanan, on Report, which I am sure he will be delighted by. Does he accept that DARPA is covered by US freedom of information legislation, whereas ARIA is not?
Lord Vallance of Balham (Lab)
DARPA is a much larger organisation and the ARPA family overall probably has close to 1,000 people working in it in total. DARPA is covered by the US Act, but it has a much larger base and many more people working with it. As the noble Lord, Lord Patel, said, the amount of information that ARIA puts in the public domain is more than that of almost any other body in the world.
Data Centres: Energy and Water Consumption
(1 day, 17 hours ago)
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The Lord Bishop of Oxford
To ask His Majesty’s Government what plans they have (1) to measure, and (2) to regulate, the amount of (a) energy, and (b) water, consumed by data centres in the United Kingdom.
The Minister of State, Department for Science, Innovation and Technology (Lord Vallance of Balham) (Lab)
The Government are actively monitoring the data centre sector and published the first government estimate of data centre capacity on 1 May, including measures indicating energy use. As part of the Government’s commitment to reduce the use of the public water supply by 20% by 2037-38, Defra is examining how the efficiency of water use in data centres can be improved and the Environment Agency is working to improve the understanding of water and resilience needs.
The Lord Bishop of Oxford
I thank the Minister for his Answer. As he is aware, the Government have a dedicated energy council, but there is, as yet, no similar provision for water, no formal record of all the current data centres or the water they use and no public criteria for assessing new proposals such as the one in Culham in Oxfordshire. Does the Minister agree that water demand and supply in AI growth zones is a pressing problem? Do the Government have any plans to establish an AI and water task force and will it have representation from local communities?
Lord Vallance of Balham (Lab)
The right reverend Prelate is right that water is a very large issue for data centres, as they consume large amounts of it. There are now technologies that reduce that use, such as recirculation of water. The AI growth zone proposals are required to set out water use—the volume of water required, the availability of that volume, the timeline of delivery and any wider infrastructure requirements or constraints—and they must work with the water provider to do that. Applications must confirm the above from the relevant water supplier and include any other associated impacts. A working group on sustainability has also been set up under the AI Energy Council.
Baroness McIntosh of Pickering (Con)
My Lords, I am an officer of the All-Party Parliamentary Water Group and follow these issues very closely. Does the Minister share my concern that data centres are being built and expanded very close to major new housing developments in areas of deep water stress? What is the Government’s policy to ensure that households, as well as the data centres concerned, will have sufficient drinking water and sufficient evacuation of wastewater sewage?
Lord Vallance of Balham (Lab)
The proposal process for AI growth zones, which is where the big data centres will be placed, started in early February and ended at the end of February. Over 50 proposals have come forward, each of which needs to deal specifically with water in relation to the local environment and local plans, and to plan that with the water company.
Earl Russell (LD)
My Lords, demand is increasing faster than our policies for AI energy usage. AI is desperately power hungry, just at the pinch point where we are desperately trying to reach clean power by 2035 and our electricity demand is set to more than double by 2050. I call on the Government urgently to create an AI energy efficiency strategy, with the target of ensuring that AI usage and savings are better than carbon neutral before 2030.
Lord Vallance of Balham (Lab)
The AI Energy Council is set up as a joint council between the Secretary of States for DESNZ and for DSIT. The noble Earl is right that, at the moment, around 2.5% of current total energy consumption is in data centres. The total amount of electricity use is due to go up from seven to 62 terawatt hours by 2050. In relation to the overall increase in requirement for electric vehicles and others, that is still about 10% of the total. However, it is a really important issue that the energy council is looking at and it leads to questions about the supply, and work on small module reactors may be part of the solution.
Lord Wigley (PC)
My Lords, would the Minister accept that, for both energy and water, there may be significant implications for the devolved Governments in Scotland and Wales, particularly with water needed in north-west England, the Midlands and the Thames area coming from water supplies from Wales? Can he undertake to keep in close touch with the Governments of Wales and Scotland on these matters?
Lord Vallance of Balham (Lab)
The AI growth zones can be distributed right the way around the country. There is a very specific plan for each of those proposals, and they must be looked at with local engagement with the relevant authorities. I am sure there will be contact with the devolved Governments as part of that.
Baroness in Waiting/Government Whip (Baroness Anderson of Stoke-on-Trent) (Lab)
My Lords, there is time to hear from both noble Lords. We will start with the Labour Party.
Viscount Stansgate (Lab)
My Lords, I for one am very grateful to the right reverend Prelate for raising this issue. I think the House is only beginning to realise just how staggering big tech’s energy usage is. I understand that Google has doubled its CO2 emissions since 2020 and signed a contract with Commonwealth Fusion Systems for 200 megawatts of power, using a power plant that does not even exist yet. Can my noble friend say whether more can be done to enable big tech companies to reveal how much energy usage and water is going to be involved in the use of AI? We ought to have an honest discussion about the costs involved in both those areas.
Lord Vallance of Balham (Lab)
I have given answers on the data centres. The broader question of AI has been looked at by a number of publications, including recently in the journal Nature, which looked at the overall energy consumption by AI and the overall potential energy reduction by the application of AI across industries. It turned out to be slightly net positive for energy. The noble Viscount is right that energy consumption is a major area to think about. There are new chips that are reducing energy consumption by a thousandfold and new approaches to machine learning that can reduce it. It is high on the list of concerns, and that is why the AI Energy Council has formed a sustainability working group.
Baroness Stuart of Edgbaston (CB)
My Lords, in the light of the National Preparedness Commission report and the energy requirement of the AI data centres, is the Minister satisfied that this is not undermining our energy systems’ resilience?
Lord Vallance of Balham (Lab)
The latest data suggests that it is about 2.5% of total energy consumption. That will increase, and is being taken into account. It is clearly important that, as we move to more renewable sources of energy and come off reliance on gas, we have an increased supply. It is also why the Government announced that Rolls Royce will be the first partner for small modular reactors, which will be an important part of our energy system going forward.
Viscount Camrose (Con)
My Lords, building on the question from the noble Baroness, now that the Government have renamed the AI Safety Institute as the AI Security Institute, can the Minister confirm that its expanded role will indeed include energy security? If so, what view does it take of the resilience of UK- hosted AI systems of exposure to high energy costs and intermittent energy sources?
Lord Vallance of Balham (Lab)
The Government believe that the best way to deliver price reductions for clean power is the clean power 2030 mission, so that the marginal price of electricity is set by gas less and less often. The increase in renewables will allow that, plus the advent of small modular reactors. The AI Security Institute is not the place to consider energy security; that is the AI Energy Council. Its sustainability working group is considering whether renewable and low-carbon energy solutions should be adopted, and where; how innovation in AI hardware and chip design can improve energy efficiency; whether new metrics, alongside the PUE—power usage efficiency—metric should be introduced; and the impact of new energy solutions such as small modular reactors. That speaks to the issue of resilience.
Lord Harris of Haringey (Lab)
My Lords, I refer to my interest as chair of the National Preparedness Commission. I am grateful to the noble Baroness for referring to a report that we issued. My question is a slightly different one. Given that data centres are now an integral and necessary part of the infrastructure of this country in the private sector and the public sector, who is responsible for their security?
Lord Vallance of Balham (Lab)
The Government are aiming to designate data centres as a type of commercial project to be considered under the nationally significant infrastructure projects plan, allowing the Secretary of State to decide on applications for new centres and bringing this into clear view of the security agencies. The security agencies are, of course, engaged in the question of how to ensure the security of what we have in data centres. On the broader point about the data itself, that is covered by the AI Security Institute.
Forest Risk Commodities
(1 day, 17 hours ago)
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Baroness Sheehan
To ask His Majesty’s Government what plans they have to make regulations under Schedule 17 to the Environment Act 2021 to ban the import of forest risk commodities.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Baroness Hayman of Ullock) (Lab)
My Lords, the UK strongly supports global efforts to protect forests and remains steadfast in working with partners to deliver the shared commitment to halt and reverse deforestation and forest degradation by 2030. The Government are currently considering their approach to addressing the impact of the use of forestry commodities in our supply chains and will update the House in due course.
Baroness Sheehan (LD)
I thank the Minister. The problem is that there is no way in which to stabilise our warming planet if we continue to destroy vital sinks like forests. The UK has a real opportunity to show ambition in tackling deforestation at the upcoming COP 30 in the Brazilian Amazon. Will the Government’s ambition be greater than that of Schedule 17, and will it align with the EU deforestation regulation, which is more robust and wide-ranging?
Baroness Hayman of Ullock (Lab)
I can confirm that we are ambitious and committed to delivering on a shared commitment that was reflected by the parties to the global stocktake at COP 28, so we have ambition in that area. Regarding the EU regulation, the UK and the EU share a common commitment to tackling deforestation in supply chains. As I am sure the noble Baroness and other noble Lords are aware, we are committed to resetting the relationship with the EU, and that will lead to closer engagement on issues exactly like this on deforestation. We also recognise the need to take action to ensure that the UK’s consumption of forestry commodities is not driving deforestation. Clearly, business also needs certainty, so it is absolutely something that we are looking at along with the EU.
Baroness Bennett of Manor Castle (GP)
My Lords, since the Environment Act was passed in 2021, the deforestation footprint from direct imports grew by more than 39,300 hectares, which is larger than the area of our New Forest. Does the Minister agree that action is a matter of extreme urgency?
Baroness Hayman of Ullock (Lab)
I absolutely agree that we need to take action on this. The Government are looking at the best way to do so in order to be most effective. The EU reset is also part of that because the EU’s deforestation programme that it is working on is ambitious and we need to look at how we align with that. Also, the DBT is undertaking the responsible business conduct review, looking at the effectiveness of the UK’s regime in preventing human rights, labour rights and environmental harms, and deforestation is part of that, so other action is taking place as we move forward in this area.
Lord Trees (CB)
My Lords, analysis by Global Witness shows that the UK’s imports of cattle products are associated with the highest levels of deforestation, yet it is predicted for 2025 that beef imports to the UK will rise by 12%, while our own beef production will fall by 5%. Given that, in terms of methane production, we produce a kilogram of beef at something like a quarter of the global average—a figure which does not take account of the negative effects of deforestation, which largely apply to imported beef and not home-produced beef—does the Minister agree that we should be supporting and expanding our beef production and relying less on imports?
Baroness Hayman of Ullock (Lab)
We look at how we can improve our food production and food sustainability in this country. It is important that we support our own food producers in doing that and that we protect them against substandard products coming in from abroad.
Lord Randall of Uxbridge (Con)
My Lords, I am sure I am going to be disappointed, bearing in mind the Minister’s first Answer, but would she commit to publishing a firm timetable to introduce the secondary legislation that is needed on this issue of forest risk commodities?
Baroness Hayman of Ullock (Lab)
I am sure the noble Lord will not be surprised when I say that we are looking at the best way to bring this forward at the moment. I cannot commit to a timetable, but I can confirm that Defra is absolutely committed to bringing in this legislation and is working within government to ensure it is done in a timely fashion.
Baroness Grender (LD)
My Lords, she cannot point to a timetable, but after three years of delay, can the Minister point to any government analysis that quantifies the environmental cost of this inaction? Does she accept the estimates of Global Witness and the WWF that UK consumption has destroyed an area of forest larger than the New Forest? Do the Government have any analysis to refute that?
Baroness Hayman of Ullock (Lab)
There are different things we can look at. Forests are a priority for the UK’s international climate finance spend—the ICF—and we are delivering ODA programmes to deliver improved forest governance, support sustainable trade and investment and mobilise finance for forest protections and restoration in developing countries. Since 2011, it is estimated that the UK ICF programmes have prevented 750,000 hectares of ecosystem loss, which is the equivalent of around 1 million football pitches. There is work taking place, but I absolutely understand why there is frustration that we have not brought in this legislation as yet.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, as the Minister is aware, a large percentage of the forests of the United Kingdom are in Scotland. Would the Minister consult with the Scottish Government about this and let us have their views?
Baroness Hayman of Ullock (Lab)
I reassure my noble friend that I regularly talk to my counterparts in the Scottish Government, as I do with the Welsh Government and the Northern Irish Government. Working closely with the devolved Governments is very important, and we can learn from each other.
Lord Blencathra (Con)
My Lords, the last Government announced on 12 December 2023 that they planned to introduce these regulations. I appreciate that the general election has intervened, but Labour has been in power for over a year now. Can I press the Minister on clarification on what the Government intend to do and when we may see the regulations? Will the Government keep the exemption proposed by the last Government for small companies with a turnover of under £50 million or using under 500 tonnes? Given the challenges in tracking supply chains, can the Minister outline what practical measures will be in place at UK borders to verify compliance and whether this will require additional resources for customs and enforcement agencies?
Baroness Hayman of Ullock (Lab)
The noble Lord asked me quite a few specific questions as to exactly what the legislation is going to look like when the Government bring it forward. I am afraid I am not in a position to give the detail of what that legislation would look like at the moment, but I can only reiterate that we want to see it coming forward as soon as practically possible. We are looking at a number of different options of how we can do that, because it is important that, when we bring this forward, it is going to work for smallholders, for example, and small businesses, and that it will be effective and genuinely tackle the issue.
The Earl of Kinnoull (CB)
Of course the biggest threat to forestry in this country, and particularly to our native broadleaf trees, is the grey squirrel. Can the Minister tell us when the England grey squirrel action plan will surface?
Baroness Hayman of Ullock (Lab)
The noble Earl takes every opportunity to talk about squirrels. The important thing is that the action plan is well under way. I spent quite some time on it myself, because, again, it is important that we make such pieces of guidance effective so that they will make the difference. We know that there are issues with grey squirrels damaging trees, as well as the impact on red squirrel populations. As I said before, I am very pleased that we have red squirrels in our garden, so I want to see them protected. I have very much appreciated the work that the noble Earl has done on the grey squirrel action plan, and I appreciate the conversations and discussions that we have had and the work that he and his colleagues have done. I look forward to continuing those discussions as we publish the plan.
Lord Teverson (LD)
My Lords, as a Defra Minister, will the noble Baroness welcome, and help the House consider, amendments to the Planning and Infrastructure Bill that better protect ancient woodlands?
Baroness Hayman of Ullock (Lab)
As the noble Lord is aware, I will be taking forward Part 3 of the Planning and Infrastructure Bill, and I very much look forward to working with the House on that part of it. I understand that amendments are being discussed at present, and I am sure that we will see those in due course.
Companies House: Filing of Annual Accounts by Small Companies
(1 day, 17 hours ago)
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Lord Sikka
To ask His Majesty’s Government what plans they have for implementing, modifying, or repealing any part of the Economic Crime and Corporate Transparency Act 2023 dealing with the filing of the annual accounts by small companies at Companies House.
Lord in Waiting/Government Whip (Lord Leong) (Lab)
My Lords, this Government are committed to implementing the Economic Crime and Corporate Transparency Act 2023. The reforms in the Act aim to improve the accuracy of Companies House data, strengthening the UK’s reputation as a place where legitimate businesses can thrive while driving out dirty money. These changes aim to improve transparency and combat economic crime. The Government are engaging with stakeholders and Companies House to ensure effective implementation while minimising burdens on small businesses.
Lord Sikka (Lab)
My Lords, the secrecy afforded to small companies has incubated financial crime. Just last month, HMRC said that 40% of corporation tax due from small businesses is not being paid. Numerous money laundering, sanctions-busting and employment scams are fronted by small companies; therefore, we need far more information publicly filed by small companies at Companies House. So, further to his reply just now, can the Minister say that the Government will fully implement all the public filing requirements which apply to small companies under the Economic Crime and Corporate Transparency Act 2023?
Lord Leong (Lab)
My Lords, the reforms under the Economic Crime and Corporate Transparency Act 2023 represent the largest changes to the UK’s financial framework for registering companies in over 180 years. With the help of new powers, Companies House has already prevented some 14,600 suspicious filings and queried and removed false, misleading or incorrect information impacting some 106,000 companies. Furthermore, since the introduction of new data-sharing powers in March 2024, Companies House has shared approximately 800 intelligence reports with partners, who can use this to complement their own intelligence picture or take immediate action to disrupt illicit activities. We recognise recent concerns and will set up next steps to address specific concerns raised.
Lord Popat (Con)
My Lords, we as a country are heavily legislated for small companies. We see a large number of UK companies leaving the London Stock Exchange for New York, and a large number of people leaving the country for good. We do not celebrate wealth creation any more. To further burden small companies that create wealth and jobs for our country will be a bit too much. Can we look at watering down some legislation and encouraging small companies to grow?
Lord Leong (Lab)
I thank the noble Lord for that. I hope that he has read our industrial strategy. We aim to reduce something like 25% of regulation on businesses. Currently, as it stands, as the noble Lord will know, most companies have to file abbreviated accounts with Companies House. So what we are asking is nothing more than what they are already doing, so we are not adding additional burdens on small businesses.
Lord Vaux of Harrowden (CB)
My Lords, thanks to the efforts of this House, the Economic Crime and Corporate Transparency Act introduced a new power for the Government to regulate in order to find out about people holding shares as nominees for other people, which is one of the easiest and most common ways by which beneficial ownership of companies can be hidden. A whole industry has built up to facilitate this. What assessments have the Government made of the misuse of nominee shareholders, and what plans do they have to use those regulations?
Lord Leong (Lab)
The noble Lord makes a very interesting point. Let me just give your Lordships an insight into what Companies House has done since the Act came into force. We have been cleaning up the Companies House database, and we have a five-year timeframe to really clean it up. The first thing we will do is to verify those individual directors. There are something like 7 million directors at Companies House and, currently, some 250,000 directors have voluntarily verified themselves. Towards the autumn of this year, through the GOV.UK One Login, we hope to have close to all the 7 million verify who they are, so that we can get to the bottom of whether who they say they are is exactly who they are.
Viscount Hanworth (Lab)
My Lords, the registration is wholly inadequate. Independent research suggests that numerous UK-registered companies have no UK resident director. Such companies are 17 times more likely to commit fraud, as the Government are in no position to impose UK law on directors living abroad. How will the Minister curb the frauds of such companies?
Lord Leong (Lab)
The noble Viscount is absolutely right. We obviously do not have jurisdiction on foreign companies or companies registered outside the UK. Let me share some facts with the noble Viscount. Since 4 March 2024, Companies House has made significant progress in tackling false and misleading information on the register, using the new powers under the Act. Companies House has removed some 220,000 false and inappropriate addresses, some 52,000 people named on incorporations without their consent, and over 13,000 documents from the register, including something like 800 false mortgage satisfaction filings that previously required a court order. So we have come some way, but there is still a lot more to do, and Companies House is getting on with it.
Baroness Kramer (LD)
My Lords, perhaps the Minister can help me, because I have become very confused. Like the noble Lord, Lord Sikka, I understand from the Financial Times and others that the Government have decided to shelve the reforms in filing for small companies, even though most of those companies have upgraded their software already in order to meet the requirements of Making Tax Digital, so there is very little additional cost to a proper filing. Could he explain that, and also pick up on the pt made by the noble Lord, Lord Sikka, which is that there is broad evidence now that organised crime is increasingly using tools such as AI so that it can front various scams and sanctions-busting by using small companies?
Lord Leong (Lab)
The noble Baroness has obviously read various newspaper reports. I suggest to her, “Don’t believe everything you read from the papers”. As it stands now, most companies have to file abbreviated accounts, which, as the noble Baroness will know, is just a balance sheet. We are asking under this Act for them to file accounts. As I said earlier, we recognise the concerns raised by various stakeholders and we will set up next steps to address those recent concerns. When this happens, a statutory instrument will be placed and noble Lords can debate it.
Lord Sharpe of Epsom (Con)
My Lords, obviously, we welcome sensible steps to reduce unnecessary burdens on small business, but, given the alleged decision to reverse the reforms to small business account filing, have His Majesty’s Government done the necessary work to ensure that reduced financial transparency does not damage creditor confidence, does not hinder investor due diligence and does not restrict access to finance for small companies?
Lord Leong (Lab)
The noble Lord is absolutely right. It is important that people must be able to rely on the data that is on file with Companies House, whether they are doing business with a particular company or to determine whether the company’s financial statements are accurate. Most companies file their accounts on time and accurately. A small minority of companies do not file their accounts on time or, perhaps, properly. This Act hopefully will go after those small companies. We are not imposing burdens on small businesses. We just want to tackle economic crime.
Lord Hain (Lab)
My Lords, on the Economic Crime Act 2023, can my noble friend explain what the Government are doing to block the £90 billion that is laundered through the United Kingdom annually, often by kleptocrats buying properties or via “onshore London” as a means of tax avoidance in UK Overseas Territories or Crown dependencies, labelled “Britain’s second Empire”, such as the Cayman Islands, the British Virgin Islands especially, the Bahamas, Gibraltar, Bermuda and the former UK colonies of Singapore and Hong Kong?
Lord Leong (Lab)
My noble friend makes a very important point. The cost of economic crime and financial opacity is staggering. It costs something like £350 billion a year to this country. Tackling illicit finance has been a top priority for this Government from day 1. We welcome the progress that has been made by many overseas territories in improving access to beneficial ownership registers to boost transparency. For those that have yet to deliver, we have made clear the importance of meeting their agreed-upon commitments and have offered technical help. However, our position is firm. Rapid and robust action is expected. The UK will not tolerate any part of its network being used to conceal dirty money or hinder law enforcement.
Business of the House
(1 day, 17 hours ago)
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Baroness Smith of Basildon
That Standing Order 44 (No two stages of a Bill to be taken on one day) be dispensed with on 10 July to allow the Supply and Appropriation Bill (Main Estimates) (No. 2) Bill to be taken through its remaining stages that day.
Subsidy Control (Subsidies and Schemes of Interest or Particular Interest) (Amendment) Regulations 2025
Lord Leong
That the draft Regulations laid before the House on 2 June be approved.
Relevant document: 28th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 7 July.
Sheep Carcase (Classification and Price Reporting) (England) Regulations 2025
(1 day, 17 hours ago)
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Baroness Hayman of Ullock
That the draft Regulations laid before the House on 2 June be approved.
Relevant document: 28th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 7 July.
Government Performance against Fiscal Rules
(1 day, 17 hours ago)
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Baroness Neville-Rolfe (Con)
My Lords, we on these Benches accept that fiscal rules are important, and we have noted the Government’s attachment to the current version and the widespread concern as to where they will turn for spending cuts or tax rises, as it is apparent that the rules are not going to be met. Today’s OBR Fiscal Risks and Sustainability report concludes:
“The UK’s public finances have emerged from a series of major global economic shocks in a relatively vulnerable position”.
We have heard from the OBR that the UK Government have the sixth-highest debt, the fifth-highest deficit and the third-highest borrowing costs among 36 advanced economies. In November, the Chancellor wrote to the Economic Affairs Committee in response to its robust and convincing report on the UK’s national debt. She said:
“The Budget took the necessary difficult decisions to put the public finances on a sustainable path—setting realistic plans for public spending while raising revenue—to create the conditions for growth”.
In the light of the dismal and depressing OBR report, does the Minister agree that this Statement and the Government’s entire economic strategy are in tatters and that the Chancellor needs to write another, more realistic letter?
The Financial Secretary to the Treasury (Lord Livermore) (Lab)
The noble Baroness mentions many things. She mentions debt. Of course, the last Government doubled the national debt. There is one reason why we are where we are. It is because of the last Government losing control of the economy—something that this Government will not do. We will meet our fiscal rules at all times. I am not going to give a running commentary on those fiscal rules. Following the usual process, the Chancellor will ask the OBR to produce a new forecast in the autumn for the annual Budget, which will include an updated assessment of the Government’s performance against the fiscal rules. At that time, we will set out our fiscal plans in the usual way.
Baroness Kramer (LD)
My Lords, the Government have constantly asserted that meeting the fiscal rules is non-negotiable. Will the Minister now reassure the House that protecting the NHS and social care is also non-negotiable, and rule out any cuts to those services as the Government try to balance the books? Will he also accept that raising employers’ NICs, especially on small businesses, is actually holding back growth? Will he look instead at what we recommended—raising taxes on the broadest shoulders of the social media giants, the gambling companies and the big banks—to consider some proper relief and support for those small businesses?
Lord Livermore (Lab)
I normally try to agree with the noble Baroness, but that is one of the most extraordinary questions I have heard in these debates. She says that we should protect the NHS and then says that we should not have the main measure that is funding the NHS. If she wants the investment in the NHS, she has to stand up for the taxes that fund the NHS.
Viscount Hailsham (Con)
My Lords, on the fiscal rules, may I suggest the following? First, the welfare budget is far too high and must be substantially reduced. Secondly, economic growth is the only way out of our present mess. Thirdly, heaping taxes on primary wealth producers is highly counterproductive. Fourthly, if additional taxes must be imposed, they are best imposed generally, so that most people can understand the consequences of the policies they support.
Lord Livermore (Lab)
I may have agreed with the first half of the noble Viscount’s question; I am not sure I agreed with the second half of it. But, absolutely, the best way to repair the public finances is through economic growth. That is why it is our number one mission.
Lord Clarke of Nottingham (Con)
My Lords, since the 2008 financial crisis, this country has built an unsustainable level of public debt in relation to our GDP, and the cost of servicing that debt is a serious constraint on financing public services. Does the Minister agree that any easing of fiscal rules in those circumstances would run a serious risk of creating another financial crisis, with more hardship? Will he undertake to stick firmly to the rather lax fiscal rules we have, as the Chancellor keeps affirming, and try to put up more stalwart resistance to the left-wing Back-Benchers in his party who seem to have got into the House of Commons in rather considerable numbers?
Lord Livermore (Lab)
I slightly disagree with the noble Lord’s characterisation of the Parliamentary Labour Party, but I certainly agree with what he says about the fiscal rules. They are essential to maintaining our ability to invest in our public services. The second fiscal rule absolutely allows the additional investment into our public services, but, as he says and as I have said before, the previous Government doubled the national debt, and we have to fund that. The more that it looks like we will not, the harder it becomes. I give him that undertaking. Our commitment to the fiscal rules is non-negotiable.
Lord Razzall (LD)
My Lords, does the Minister agree that the original purpose of the change in the fiscal rules brought in by his Government was to ensure that we did not have a ball-by-ball commentary, every time there was the remotest whiff of a financial crisis, on whether or not the fiscal rules were being observed? As I understood it, there was going to be a five-year look at the fiscal rules, but, as things stand, it appears that we are going to be subjected constantly to the noble Baroness’s question about whether the Government is complying with them. I thought the whole point about these rules, as they stand, was that that question was unnecessary.
Lord Livermore (Lab)
There are two things here: the fiscal framework and the fiscal rules. On the fiscal framework, we have moved to one fiscal event a year, which is the November Budget. There are two fiscal forecasts, in the spring and in the autumn. The noble Lord is absolutely right: we should not give a running commentary on the fiscal forecast. That is, quite properly, for the Office for Budget Responsibility to do. It will do that in the usual way ahead of the annual Budget, and then the Chancellor will make decisions based on that forecast.
The noble Lord talks about the fiscal rules. The one thing I will say is that the changes to the fiscal rules that we made when we came into office were to enable us to invest sustainably in infrastructure and in public services, to stop the cannibalisation of investment to patch up day-to-day spending which we saw under the previous Government. It is interesting that the party opposite has opposed that change to the fiscal rules yet still supports the additional investment that that changed fiscal rule brings. Again, I am not sure that that is entirely consistent.
Lord Watts (Lab)
My Lords, will the Minister rule out following the example of the Truss Government, who crashed the economy? Has he received an apology for being left such a sad state of affairs in the economy that we have inherited?
Lord Livermore (Lab)
My noble friend is absolutely right. It is exactly because of the experience of the previous Government—that disastrous Liz Truss mini-Budget, which saw mortgage rates spiral and from which working people are still suffering higher mortgage payments—that it is so important that we maintain fiscal responsibility and why we absolutely continue to adhere to our fiscal rules.
Lord Willetts (Con)
My Lords, today’s OBR report shows that the cost of the pensions triple lock is running three times higher than previously forecast. It is costing over £10 billion a year, and we now know that pensioners, on average, enjoy higher living standards than working-age families. If tough decisions have to be taken to meet the fiscal rules, will the pensions triple lock be reviewed?
Lord Livermore (Lab)
I know that that is the policy of the noble Lord’s party; it is not the policy of this party. The OBR fiscal risks report talks about an ageing population and how that presents significant fiscal challenges in supporting pensioners. The landmark pensions review, in terms of delivering better outcomes for savers and strengthening the economy, is important in that regard.
Lord West of Spithead (Lab)
My Lords, does my noble friend the Minister agree that, if we get defence policy wrong and there is a war, welfare and the National Health Service will count for nothing?
Lord Hannan of Kingsclere (Con)
My Lords, in his first answer, the Minister used the phrase, “lost control of the economy”, which is familiar from the election. It is a very telling phrase. Which bits of the economy would he like to control that are not currently controlled? Is not the reality that the problem is losing control not of the economy but of the deficit? I have to ask: in what areas will the Government slow the increase in welfare spending? If they are not going to do PIP or child benefit, where is he going to find the savings?
Lord Livermore (Lab)
My Lords, I will tell the noble Lord what matters in terms of controlling the public finances: economic growth, which his Government singularly failed on. Whether it was the Liz Truss mini-Budget, the Brexit deal that he supported and championed, or austerity at exactly the wrong moment for the economy, the previous Government’s record on economic growth was woeful.
Lord Garnier (Con)
My Lords, I think the public are getting a bit bored of the mantra of blaming the previous Government—that is a long time ago now.
Lord Garnier (Con)
What are the current Government going to do about the current problem?
Lord Livermore (Lab)
I do not think the public are getting bored of it. The noble and learned Lord may be getting bored of it, perhaps because he is slightly sensitive about it. If he thinks that 14 years of crashing the economy can be undone in one year, he is living in cloud-cuckoo-land. This Government will stick to their policies and grow the economy.
Actions of Iranian Regime: UK Response
(1 day, 17 hours ago)
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Lord Callanan (Con)
My Lords, we are in agreement with the Government that Iran must never have a nuclear bomb, so will the Minister finally get off the fence and accept that the US strikes on Iran’s nuclear development facilities were absolutely necessary and justified? Iran’s destabilising influence is already prevalent in the UK, as was made clear by the director-general of MI5, who pointed to 20 Iran-backed operations being foiled by the security services in their excellent work. Will he also update the House on the steps that Ministers are taking to tackle Iran-sponsored hostile activity here in the UK and against UK interests overseas? Does he accept that, given the threat it represents, it is now time to proscribe the IRGC, and that, because of the threat they represent to UK maritime activity, it is time also to proscribe the Houthis?
The Parliamentary Under-Secretary of State, Foreign, Commonwealth and Development Office (Lord Collins of Highbury) (Lab)
As the Prime Minister has said alongside our allies and partners, Iran must never develop a nuclear weapon. Iran must urgently resume co-operation with the IAEA to enable it to verify its nuclear material. As I have repeatedly said to this House, ultimately only a diplomatic solution—that President Trump has highlighted—can address the nuclear issue for the long term. Iran must urgently come back to the table and negotiate. Alongside France and Germany, we will continue to work with the US and Iran towards an agreement that ensures that Iran will never develop a nuclear weapon.
I am absolutely clear on state threats: we will not tolerate any Iran-backed threats on UK soil. Iran continues to pose an unacceptable threat to our domestic security, which cannot continue. It poses a threat to dissidents, journalists and our Jewish community in the United Kingdom. Since 2022, over 20 threats to the UK have been foiled. The Home Secretary announced on 19 May that Jonathan Hall’s review delivered recommendations to tackle state threats. We are committed to taking those forward, including through the creation of a new state threats proscription-like tool.
Lord Purvis of Tweed (LD)
My Lords, hundreds of both Iranian and Israeli citizens were very regrettably injured and killed as a result of the strikes. We were told by our American friends that the Iranian nuclear programme had been obliterated. We now know that it has not; it may be delayed by just a matter of months. We were also told that, as a result of those strikes, the Red Sea threat would be removed. As of yesterday, we have seen that that is not the case. So we know that military action will not be the means by which we have long-term change in practice by the Iranian regime or safety in the Red Sea. What diplomatic actions will the UK take as part of our E3 network? What practical steps are we taking to ensure that Tehran is part of the negotiating table? We know that military strikes have not worked, so what are we doing to ensure that diplomatic efforts will?
Lord Collins of Highbury (Lab)
I am not going to speculate on what we may or may not know about the outcome of those strikes, but what I do know and have repeatedly said—and the noble Lord is right on this point—is that ultimately only a diplomatic solution will deliver a sustainable, long-term solution. The Foreign Secretary has been in touch with Secretary Rubio, Foreign Minister Sa’ar, Foreign Minister Araghchi, our E3 counterparts, the EU high representative and our G7 allies. We have also spoken to all our allies in the region to ensure that we can put the maximum pressure to ensure a negotiated solution. We will use all diplomatic tools to support those negotiations, including, as I have previously said, the snapback facility.
Baroness Falkner of Margravine (CB)
My Lords, while I welcome the Government’s efforts in recent months a great deal, will the Minister accept that those who are calling for Iran’s current situation to be seen as a weakness may be gambling a little, because Iran has frequently demonstrated that when it is cornered it turns more belligerent? Is it not now time, on the back of Mr Witkoff’s success in reviving some kind of JCPOA, to concentrate on that part of the diplomatic story as well?
Lord Collins of Highbury (Lab)
I repeat that the Prime Minister, the Foreign Secretary and the Minister responsible have been absolutely focused on diplomatic efforts. I also repeat that President Trump has made it clear that negotiations are the only sustainable, long-term solution to the nuclear threat that Iran poses. That is what we are working towards. I am absolutely confident that President Trump will be able to deliver that negotiated settlement, because it is in everyone’s interest.
Lord Cryer (Lab)
My Lords, is it not about time that we got around to proscribing fully the IRGC? We are talking about a latter-day combination of the Blackshirts, the SA and various other fascistic organisations. They do the bidding of a death cult that is dominated by clerical fascists. It is about time we got around to banning it.
Lord Collins of Highbury (Lab)
I repeat that we have Jonathan Hall’s review, which delivered a number of recommendations, all of which the Home Secretary has accepted, including the creation of a new state threats proscription tool. I also point out that we have a large number of sanctions against Iranian individuals and organisations, including the whole of the IRGC.
Viscount Hailsham (Con)
My Lords, in assessing malign actions, may I suggest that the ordinary criminal law should be used whenever possible and that proscription should be the instrument of last resort, because otherwise we are in danger of trivialising the concept of terrorism?
Lord Collins of Highbury (Lab)
As I said, Iran poses a serious state threat, and we have already foiled more than 20 plots in the UK. Those plots have been focused on all our citizens, but particularly communities, including the Jewish community. I do not underestimate the threat that Iran poses, and I think all possible action needs to be considered to secure our people and make sure that they can walk our streets safely. We have seen what Iran can do, and it is very serious. We need to respond. We do not think that proscription of the IRGC is appropriate at the moment. I am not going to predict our actions, but we have been clear that we will take Jonathan Hall’s review recommendations seriously, and we will implement them all.
Baroness O’Loan (CB)
My Lords, the reality is that Iran represents not simply a nuclear threat but a much wider threat. Given that the IRGC and military intelligence have been summoning the relatives of political activists who live abroad and telling them that unless those political activists stop their activity anything could happen to their relatives at home, and given that more than 700 people have been arrested in the past few weeks and that more than 150 people have been executed in the past month, is it not time to move on from the mantra that it is not yet time to proscribe the IRGC? Will the Minister tell us what the state threats prosecution tool would do that proscription would not do?
Lord Collins of Highbury (Lab)
I am not going to predict exactly what form that will take, but I agree with the noble Baroness that Iran and all its state organisations pose a threat and we need a holistic approach. That is why we asked Jonathan Hall to conduct a review and why he has come up with some very serious recommendations. Those include a new state threats proscription-like tool. How that will eventually work I cannot determine. It is important to stress that not only is Iran a serious threat to our citizens here but its human rights record is appalling. It also poses a threat to the families of our BBC Persian service people. We have to act seriously on all aspects of that threat.
Arrangement of Business
(1 day, 17 hours ago)
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Baroness in Waiting/Government Whip (Baroness Anderson of Stoke-on-Trent) (Lab)
My Lords, in order to fix our current technological challenges, we require a temporary adjournment. The House will therefore adjourn during pleasure for five minutes. We will resume at 3.45 pm.
The Deputy Speaker (Baroness Fookes) (Con)
My Lords, it appears that the technological problem has not been solved, so we are going to soldier on as best we can.
Border Security, Asylum and Immigration Bill
Tuesday 8th July 2025
(1 day, 17 hours ago)
Lords ChamberBorder Security, Asylum and Immigration Bill 2024-26 View all Border Security, Asylum and Immigration Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 101-II(b) Amendments for Committee (Supplementary to the Second Marshalled List) - (8 Jul 2025)
Lord Alton of Liverpool
Member’s explanatory statement
This amendment gives effect to the JCHR’s recommendation that the mens rea threshold for clause 13 ought to be one of intention or recklessness.
Lord Alton of Liverpool (CB)
My Lords, the first part of day 2 in Committee deals with organised immigration crime offences. We will hear later about safeguards and modern slavery, and will return to the question of what might constitute a reasonable explanation on the part of an irregular migrant, but we begin with Amendments 31 and 41 in my name, which deal with mens rea. I am also happy to be associated with Amendments 32, 42 and 53, which are grouped with these. The Committee should note too that these amendments are linked to the next group, beginning with Amendment 33. I will keep some of my powder dry in suggesting why the Minister should also give them a fair wind or at least a promise of further consideration.
The Committee will know that the amendments in this and the subsequent group are among the recommendations contained in the Joint Committee on Human Rights report on the Bill, appearing in the report as amendment 3. I was grateful to the Minister for his assurance that, before we reach the next stage of the Bill in September, there will be a considered response to the JCHR report and its recommendations.
As a grammar school boy from a council estate with a mother whose first language was Irish rather than English, I remember being daunted as an 11 year- old by my first lesson in Latin. Later in life I read with some amusement that Winston Churchill questioned the use of the vocative case “O table” when learning the word mensa. His teacher’s explanation, that it was used to address a table, was met with Churchill’s practical, albeit impertinent, response, “But I never do”. However, I think the great man would have seen much more practical use for the words mens rea, meaning guilty mind in Latin.
Linguistics to one side, my barrister daughter assures me that it remains a crucial concept in criminal law. It refers to the mental state of a defendant at the time of committing a crime, specifically their intention, knowledge or recklessness regarding the prohibited act. That mental element, along with the physical act, actus reus, must be proven for a person to be found guilty of a crime.
My Amendment 31 would leave out “knows or suspects that” and insert
“intends that, or is reckless as to whether”.
This amendment would give effect to the JCHR’s recommendation that the mens rea threshold for Clause 13 ought to be one of intention or recklessness. Amendment 41, which is amendment 4 in the Joint Committee report, appears at Clause 14, page 8, line 9. It would leave out “knows or suspects that” and insert
“intends that, or is reckless as to whether”.
Amendment 41 would also give effect to the JCHR recommendation that the mens rea threshold for Clause 14 ought to be one of intention or recklessness. It would have the same effect as Amendment 31, but in a different clause.
Put these amendments into the context of Clauses 13 to 17, which create three new precursor offences to target the activities of facilitators and organised criminal gangs that look to profit from organised immigration crime. These amendments seek to raise the mens rea threshold for which someone might be caught by the offence of supplying, offering to supply or handling a relevant article for use in the commission of certain immigration offences. The words in Clause 13, “knows or suspects that”, are a lower mens rea threshold compared with intention and recklessness, which is what the JCHR recommendation is urging us to substitute.
The JCHR report notes that
“comparable precursor terrorism offences have a higher mental element, requiring intention to commit or assist in the commission of terrorist acts”.
In paragraph 17 of the JCHR report, Liberty provides an example in its written evidence. It illustrates how a woman fleeing persecution who has had her phone stolen, and her British grandfather who provides her with a phone to help her—despite suspecting that she will use it to contact smugglers—might both be caught by this offence. In paragraph 19 of the JCHR report, ILPA, the Immigration Law Practitioners’ Association, provides a further example:
“A well-meaning individual providing voluntary humanitarian assistance in Calais hands out SIM Cards. A father receives one and passes a mobile phone and the SIM card to his daughter”.
They may both be prosecuted for having supplied a relevant article.
Paragraph 38 of the JCHR report concludes that
“the breadth of these precursor offences”
captured in Clauses 13 to 17
“poses a risk of unintended harms to those who are most vulnerable”.
These relevant amendments seek to mitigate this risk by seeking greater circumscription and more robust safeguards.
Paragraph 50 of the JCHR report similarly concludes that the precursor offences captured in Clauses 13 to 17
“create uncertainty, extend beyond the Government’s stated … aim, and risk inadvertently criminalising persons who ought to be protected from criminal penalty”.
I hope the Minister, the noble Lord, Lord Hanson, agrees that some fine-tuning, while not preventing prosecutions, could strike a better balance. I commend the amendments to the Committee and beg to move.
Baroness Hamwee (LD)
My Lords, I did two years of Roman law, which did not stick, but the mens rea in criminal law did stick. The noble Lord, Lord Alton, and I are very much on the same page here. He did not quote the rather neat line from his committee’s report: that it considers that the
“precursor offences would benefit from greater circumscription”.
I thought that was very circumspect, and rather typical of the careful language our Select Committees use.
My Amendments 32, 42 and 53 are, if you like, more instinctive and a bit more amateur; the noble Lord’s are technically better, and I am happy to support them. My amendments go to the words “suspects” and “suspicion” in Clauses 13, 14 and 16. That is a very low threshold, with the burden being on the person charged to show beyond all reasonable doubt that they had a reasonable excuse. I looked up the definition, and the Oxford English Dictionary defines to “suspect” as to
“imagine … on slight or no evidence”,
and
“to believe or fancy to be guilty … with insufficient proof or knowledge”.
The noble Lord, Lord Jackson, on the first day in Committee, working from a superseded group of amendments—although it was not his fault—described all the amendments in the group, which included these, as being “well meaning”. I choose to take that as a compliment, although I am not sure that it was intended quite directly as one. He said that they would
“significantly change the burden of proof in respect of evidence”.—[Official Report, 26/6/2025; col. 447.]
Exactly, and that is the point. These are criminal offences with substantial penalties, and that should require a high burden of proof. I am very uneasy that, in the circumstances, a term that I could describe as casual does not require much from the prosecution. We will come to the content later, but I will raise this point whatever the content of the offence.
Lord Harper (Con)
My Lords, I listened very carefully to the noble Lord, Lord Alton, and have a great deal of respect for the side of the argument he is coming from. But the piece missing from his argument, and from that of the noble Baroness, Lady Hamwee, is the concept of deterrence.
What the Government are trying to do, as far as I understand it—the Minister will correct me if I have got this wrong—is to put in place a framework that actually stops the organised criminal groups, as well as those who pay them and those who help facilitate that immigration crime. The intention is to stop them doing these things in the first place, and there is a balance to strike between the criminal law regime you put in place and the penalties. It needs to be sufficiently tough that you actually deter people in the first place.
The Joint Committee’s report says that the
“scope is broad, the thresholds are low, and the penalties are high”.
That is correct, but that is because the Government are trying, I think—and if so, I support them—to set those penalties so that people are deterred from trying to cross the channel. Let us remind ourselves that they are doing so from a safe country. They are not fleeing persecution in France; they are already in a safe European country. They may have been fleeing persecution in the country from which they originally came, but they are now in a safe European country. Of course, we also know that a lot of the people undertaking these journeys are not fleeing persecution at all; they are travelling, perfectly understandably, for economic reasons, but those are not reasons we should allow.
Baroness Hamwee (LD)
Is it not sensible to look at it from the point of view of the person who may be undertaking the action? If there is to be deterrence, you have to look at it from that point of view. Whatever your objective, you have to look at it from the point of view of the person who may be affected; otherwise, you cannot assess whether there is a deterrent effect. Does the noble Lord think that people who reach the northern shores of Europe are as aware of the detail of legislation as his argument would require them to be?
Lord Harper (Con)
I shall address both the points the noble Baroness has made. On the first, in one sense I am very much looking at it from the point of view of the participants. I want them to be clear that carrying out that particular set of actions would indeed be an offence with a significant penalty, because I want them to then conclude that they do not want to do that and do not want to cross the channel to the United Kingdom from the safe country in which they currently reside. That is the point of the legislation.
On the second point, I am clear, having had some experience of running the immigration regime, and particularly of the development of technology, that the noble Baroness will find that most of the people concerned have mobile telephones and are very well aware of what is going on. There are many groups out there that provide detailed information to migrants about the law and those who can facilitate their being smuggled into the United Kingdom. They are very well aware of changes we make and of the legal position. We were very well aware—I am saying this only because it has just occurred to me—that in the run-up to the election, lots of communications were being made with people in northern France about the likely outcome of that election and whether they should stay put or make the crossing to the United Kingdom. They are very well aware of what is going on, and that is very relevant.
Lord Alton of Liverpool (CB)
The example that Liberty gave—the committee did not invent it—is built on a statement by the committee that:
“There is no express distinction in clause 16 between those who engage in such conduct as smugglers, and those who engage in such conduct as asylum seekers, victims of modern slavery, or persons (including children) who may be coerced into carrying items such as phones”.
I am sure that, with his experience, the noble Lord will accept that that is the case. It is about trying to find a balance, so that we can deal with those making money from creating the circumstances to smuggle people in and out of this country and those who are genuine, including children like those whom the committee describes.
Lord Harper (Con)
The noble Lord makes half a good point. I agree with him on people who are victims of modern slavery. I think my noble friend Lady May will speak to some amendments on that in later groups.
I am sorry if this disappoints noble Lords, but the fact that the example in the report was given by Liberty does not strengthen the case, in my humble opinion, but somewhat lessens it. When I was Immigration Minister, Liberty spent most of its time trying to undermine our immigration legislation and argued for not protecting our borders. It failed to understand, importantly, that if the British public do not think that we have a robust immigration and asylum system then they will become increasingly intolerant of protecting people whom I believe should be protected. You command wide public support for people genuinely fleeing persecution, for whom we should provide refuge, by being clear that we have the ability to stop those who are not entitled to that protection coming to our country and making a mockery of our system. Organisations in favour of our looking after genuine asylum seekers and people who would meet the test of being a refugee should sometimes reflect that being uncritical, as I am afraid many of them are, about those people attempting to come to the United Kingdom damages the public’s view and our ability to have a system that genuinely helps those who need it, as everyone then gets swept up because the system is not working.
Finally, I may have misunderstood the noble Baroness—I am very happy to take an intervention if I have it wrong—but, on her amendments probing the removal of the defence, she said that she wanted the prosecution to have to make the argument. She said that the current drafting means that people would have to prove their defence beyond a reasonable doubt. That is not my understanding of how this works. It is for the prosecution to prove beyond a reasonable doubt that somebody is guilty of an offence and the legislation, as drafted, provides that there are defences that people can offer as to why they may have conducted themselves in a certain way. Unless I have misunderstood something very badly, that does not require the person to prove their defence beyond a reasonable doubt—all they have to do is, in setting out the defence, raise at least a reasonable doubt with the court that they were not guilty of the offence. That seems the right place to have the test in our criminal justice system. As currently drafted, the legislation does not have the effect that she thinks it does.
Baroness Hamwee (LD)
We debated the reverse burden of proof on the first day in Committee. I certainly do not take it from any of the briefings I have had, or from previous debates on the reverse burden of proof in other Bills, that it is as the noble Lord described it. As I understand it, you are charged and then you have to put forward a defence if you believe you have a reasonable excuse—which you have if there is sufficient evidence of the matter to raise an issue and the contrary is not proved beyond reasonable doubt. It therefore throws the “not proved beyond reasonable doubt” on to the defence. Presumably the CPS, in the usual way, would have to believe that the public interest test is met and so on, but it upends the normal way that we do things.
Lord Harper (Con)
I am grateful for that explanation. As I explained to the Committee, I could not be here on the first day but I have read through the debate and I am afraid I did not agree with that then either. I just do not buy that that is what this does. The prosecution has to prove beyond a reasonable doubt that somebody is guilty of the offence. In the legislation as drafted by the Government, somebody can offer a defence and all they have to do for that defence to be successful is create a reasonable doubt in the minds of the jury. That does not reverse the burden of proof at all.
To pick up on the point in the amendment about changing “knows or suspects” to “intends that, or is reckless”, if you know or suspect something untoward is going to take place, that is a reasonably decent idea that someone should not really be doing it. If I know or suspect someone is going to commit crime, it is probably not very wise if I provide them with equipment that would enable them to commit that crime. I do not really see why I would want that test to be much higher. Let us remember that we are not trying to criminalise people who are thinking about doing this; we are trying to say to them, “If you do this, you will be committing a criminal offence and we’d like you not to do it”. That is the purpose of this. Ministers would be delighted if they did not have to prosecute anybody—certainly none of the people contemplating crossing the channel. They want to put in place a deterrent regime that stops them doing it. That is the objective of the legislation. Weakening it would just remove that deterrent effect and we would get back to the position in which we do not have control of our borders, significant numbers of people cross the channel and undertake unsafe journeys, and the British people have no confidence in our immigration and asylum system, which would damage it for the legitimate refugees for whom we want to provide proper protection. We can only do that if there is a system that commands public confidence.
If I have understood what the Government intend to do, I respectfully suggest that the Committee should not support the amendments tabled by noble Lord and noble Baroness. We should stick with the wording in the Bill.
Lord Green of Deddington (CB)
My Lords, I can be very concise, mainly because I agree almost entirely with everything that the noble Lord, Lord Harper, said. We should not lose sight of the fact that this whole issue is a real concern to the public. They think we are being made fools of and they are largely right. It is time that the law was tightened up and the authorities got a grip on the situation. I support the Government’s drafting and I hope it will be widely supported.
Lord Jackson of Peterborough (Con)
My Lords, I oppose these amendments. The noble Baroness, Lady Hamwee, was gracious in absolving me of my stupidity in jumping ahead. I misread the amendments last week, but we are now in group 2, so we can discuss mens rea.
It is quite in order for noble Lords in this House to test the efficacy and appropriateness of new offences; there is nothing wrong with that. I have read in detail the report by the Joint Committee on Human Rights, which is ably chaired by the noble Lord, Lord Alton of Liverpool, and I have even read the ILPA briefing on the Bill—which takes some doing if you come from my perspective. I concur with the pithy remarks of my noble friend Lord Harper—who has great experience as a former Immigration Minister—that one does not always take Liberty’s briefings as the true gospel.
However, the reason I oppose these amendments is that I am not convinced by the argument prayed in aid by noble Lords, even in the JCHR report. I thought the comparison on page 10 was a specious comparison of precursor offences when they were compared with terrorism offences. I did not think that was an appropriate offence to compare it with, frankly. It is quite right to test the limits of the mens rea doctrine in respect of intention, recklessness and the reverse evidential burden of proof contained within the reasonable excuse provisions. But one has to look at the real-world consequences of what would happen if we accepted these sweeping amendments in terms of the interpretation by the judiciary and others of an amended Bill with this wording in it. I used the words “well-meaning” and it is absolutely not ignoble to put forward these amendments. However, there is a degree of otherworldly naivety about the damaging implications of the Bill being amended in this way.
Lord German (LD)
My Lords, what we have just heard is not unexpected. I understand that the Conservative Benches really want to stop everyone from coming across and making those dangerous crossings, which everyone would want to do, but it is quite surprising that we are debating how these matters will work between ourselves and France when the man holding the reins of the other half of this continent is in the next room to us, telling Members what he thinks on these matters. So I ask the Minister what he has heard so far about the issue of the exchange mechanism that has been trailed in our newspapers so strongly.
Secondly, I thank my noble friend Lady Hamwee for acting as what the Minister called the “super-prop” or the “super-sub” last week when some of us were away working in the Council of Europe.
On these very particular amendments, it is my reading of the report from the Joint Committee on Human Rights that these two amendments were agreed unanimously by all committee members, including the Conservatives. If that is the case, it is not just simply a matter of people saying, “We want to try and stop this happening in broader terms”, but there are Conservative members who have looked very closely at this particular part of the legislation, are trying to work out what is most appropriate and have committed themselves to it, both in this House and in the other House as well.
First of all, the noble Lord, Lord Harper, raised the issue that having to prove yourself not guilty is not something we do in this country. You have to be charged, but you do not have to go into the case from the other end of it. The issue here before us is what it will capture in that state between people who might or might not be guilty of what they are being charged with.
For example, two weeks ago, I was lucky enough to go to the northern coast of France and meet all the French authorities, from the préfecture downwards right through to on the beaches. One of the things pointed out to me was a Catholic centre where people were being helped because of normal life. They were being helped with food and trying to get appropriate clothing, and they were also being given SIM cards. If the Catholic priest who was giving out the SIM cards is going to be caught by this legislation, we ought to be very careful about the words that we use.
The change is in the words “intends that” from “knows or suspects that”. Though the cases we are going to discuss later are very proper and important offences, they are really focused on the smugglers and not the smuggled, and the smugglers getting 15 years in prison, which is the maximum sentence before us, yet the only test of getting into that process is whether somebody knows or suspects that a relevant article will be used by a person in connection to an offence.
So it is not that simple to simply say there is no link between the nature of the offence and the target for it. I am rather hoping that the Minister will tell us that this is a very tricky issue, it is something in respect of human rights that has been reflected throughout our law—international law as well as the law of our own country, both put together—and in the international conventions: not just those we were a signatory to but those we signed up to and those we created, and not just the ECHR but others as well.
Lord Jackson of Peterborough (Con)
Will the noble Lord give way? I am listening with great care. If I can direct him back to the issue of reverse burden of proof, he will know that this is not unusual—it is not common, but it is not unprecedented. Section 139 of the Criminal Justice Act 1988 states that, if someone is found with a blade in a public place and the prosecution proves possession, the defendant must prove they had a good reason for possessing it. The Health and Safety at Work etc. Act 1974 places a reverse burden on the defendant to prove that they took all reasonable steps to avoid the offence. These things are not unusual. For such an important public safety issue, surely the noble Lord will concede that it is not unusual or unprecedented for the Government to seek to take these matters in the legislation in the way they will.
Baroness Hamwee (LD)
I do not think that either of the noble Lords were in the House when we put forward the same arguments about the burden of proof regarding blades and, I think I am right in saying, chemicals which could burn and disfigure, which can also be domestic—
Baroness Hamwee (LD)
I thank the noble Lord— I knew there was a word for it. We do not deny that there are examples on the statute book, but we objected to them at the time.
Lord German (LD)
I think the answer is related to the nature of the offence which is before us. An offence which is punishable by a 15-year maximum jail sentence is a very serious and big crime to have committed. To put it simply, the suspicion threshold is seldom applied in our criminal law because such a low threshold —the noble Lord was saying that there are examples—is a disproportionate response to where someone has not been intending to commit a crime and with such a disproportionate sense of what harm they might be doing. The balance between the nature of the offence and the nature of the judgment which creates that offence is what is disproportionate.
Lord Harper (Con)
In this discussion about reverse burden of proof, something is being missed here, which is why the knife example the noble Lord gave was not a good one. There are two parts to the test in Clause 13, which is that you have to have supplied the article but also have to know or suspect the use to which it is going to be put. So it is not just enough for somebody to show that you did the thing; the prosecution has to prove that you knew or suspected something as well. So that is not a good example, and therefore it does not flip the burden of proof around. It still lies with the prosecution.
Lord German (LD)
I did not use the example of a knife. I can refer the Member to the Hansard of the previous day in Committee, which I have already apologised for not being at it because I was working with colleagues on immigration matters in another parliament at which this Parliament is represented. It would be unwise to try and deal with arguments that we had last week, of which I was not a part, but I simply say that the relationship between the offence in this case and the threshold which is being put before it is not significant. I suspect that we will treat and think about this throughout the course of the debate on the whole Bill today when we relate ourselves to the fact that this is meant to be aimed at the smugglers.
One of the things in common to all the people on the north coast of France, who represent so many different parts of the structure that is trying to stop the people taking these dangerous routes, was that they were concentrating on the smugglers. Everything was determined in terms of how they could get at the smugglers, and protecting human life and being humane in what they do as well.
The challenge in the Bill as we go through, and to the Minister, who I hope will give me a hopeful reply on what the man in the next room is saying, is the fact that this is a distinction between making very powerful offences for challenging those who are guilty of this horrible crime of taking people in terrible conditions on what are very dangerous routes indeed.
I have just one final point about the messages which smugglers send to the people who are going to be smuggled. I am sure they will not be saying, “You’d better be careful: the British are changing their laws in these directions”. As we were told by those who intercept their telephones in France, it is much more about where they should go and what they should avoid going to, what they should avoid doing and what they should do in terms of getting their journey. That is really the whole challenge from the smugglers. I welcome the response from the JCHR on the reason why, unanimously, it posed and passed these resolutions.
Lord Alton of Liverpool (CB)
My Lords, before the noble Lord sits down, I am grateful that he ended on that note, because I just want, for the sake of the record, to say that although paragraphs 1 to 52 were agreed unanimously, the entire report was not—two members voted against and one abstained—but it was a very thorough report, conducted, I might say, on all sides with a great deal of diligence and thoroughness. All my colleagues participated in that in a robust way, as the noble Lord might imagine.
Lord Cameron of Lochiel (Con)
My Lords, I am grateful to all noble Lords who have contributed. Just, I hope, to bring a little clarity to the latter discussion between my noble friend Lord Harper and the noble Lord, Lord German, as I read it, Clause 13, “Supplying articles for use in immigration crime”, sets out in its first subsection the offence, and it does so neatly separating the actus reus, the actual act—here, offering to supply a relevant article—from the mens rea, which is knowledge or suspicion. Subsection (2) goes on to state:
“It is a defence for a person charged with an offence under this section to show that they had a reasonable excuse”.
It was subsection (2) that we debated at length on the previous day in Committee on this Bill, and it is at that point that the burden of proof shifts to the defence to prove their defence under the subsection.
I am very grateful to the noble Lord, Lord Alton of Liverpool, for bringing these amendments. It has proved to be a very stimulating debate. As others have said, I have an immense amount of respect for him, given his long and distinguished career, and I am also grateful to the noble Baroness, Lady Hamwee. I listened very carefully to what they both said. I have to say that I fundamentally disagree with the amendments that they have brought, however. They seek to alter the mens rea principle in Clauses 13, 14 and 16, by replacing the current standard of knowledge or suspicion with one of “intent” in the case of the amendments of the noble Lord, Lord Alton, or “belief” in the case of the amendments from the noble Baroness, Lady Hamwee. It does not seem to me to be in dispute that these amendments, if passed, would introduce a higher and more complex threshold for the mental elements of the offences, thereby raising the requirements for securing conviction and making it significantly more difficult to hold to account those involved in supplying equipment for illegal crossings and other articles used in the facilitation of unlawful entry into the United Kingdom. In doing so, they would risk creating precisely the kind of ambiguity that organised criminal gangs thrive on.
I think it is important to remind ourselves what this clause is designed to address. It is aimed at those who provide the tools that make dangerous, illegal crossings possible: those who supply forged passports, false work permits, dinghies and outboard motors that fuel the people-smuggling trade. These individuals are the logistical agents of criminal networks responsible not only for undermining the security of our borders but for endangering lives.
Let us not forget that more than 20,000 people have now crossed the channel in small boats in 2025 alone and, tragically, some have died in the attempt, fundamentally because the journeys are facilitated by those who care more about profit than human life. If we are to be serious about tackling this, we must ensure that the legal framework is as robust and usable as possible. If we replace the standard of knowledge or suspicion with intention or belief, prosecutors will be forced to demonstrate not merely that a person knew or suspected that their goods would be used for immigration crime but that they positively intended or actively believed that they would be used as such. That is a much higher bar, and one that would inevitably lead to fewer prosecutions, fewer convictions and fewer disruptions to these dangerous criminal networks.
The very thorough report from the Joint Committee said that the current standard in the Bill is a low threshold compared to, for example, intentional recklessness. We note that comparable precursor terrorism offences have a higher mental element, requiring intention to commit or assist in the commission of terrorist acts. I think this was quoted by the noble Lord, Lord Alton. However, as the noble Lord, Lord Jackson, correctly said, these terrorism offences are not precursors and so are not comparable.
The mens rea test of knowledge used in this Bill—the one that the noble Lord and the JCHR have criticised—is the same standard that is used in offences under the Immigration Act 1971, albeit about entry and not the supply of articles. Section 24B(1) of that Act states that:
“A person who … requires leave to enter the United Kingdom under this Act, and … knowingly enters the United Kingdom without such leave, commits an offence”.
The operative word here is “knowingly”. This is the same standard that is applied to the offences in Sections 24(A1), (C1), (D1) and (E1), and Sections 24A, 25 and 25A, of the Immigration Act 1971. In short, existing immigration offences all use the test of knowledge to determine the mental element of an offence. It is therefore entirely consistent for the offences in Clauses 13, 14 and 16 to use the same test.
These are not minor procedural safeguards. These are the tools that we need to dismantle the infrastructure of people smuggling. The law should be a shield for the vulnerable, not a loophole for the criminals who exploit them. We have to construct a strong legal framework, not one that is diluted and less able to protect vulnerable people as a result. My noble friend Lord Harper made the point very powerfully that this is about creating a deterrent. We need to confront this threat with a strong legal arsenal, not a weakened one. We should not be inserting language into this Bill that makes it harder to prosecute those who supply the means for deadly journeys. These are serious offences with serious consequences, and the law must reflect that seriousness. In this instance, I oppose these amendments.
The Minister of State, Home Office (Lord Hanson of Flint) (Lab)
I am grateful to the noble Lord, Lord Alton, and the noble Baroness, Lady Hamwee, for tabling their amendments. They have stimulated a discussion on important points that the Committee needs to consider. I am also grateful to noble Lords for attending this debate when such powerful alternative options are available not 200 metres away—I will use metres instead of my normal yards—where the President of the Republic is addressing both Houses of Parliament.
The noble Lord, Lord German, tempts me to discuss what the President of the Republic is currently saying. Our relationship is very strong. There are a number of issues on which we are expected to make positive statements in the next couple of days, and we are working very closely on re-intensifying our activities on the northern coast. I will allow further discussions to take place prior to any announcements from this Dispatch Box about the outcome of any discussions between the Prime Minister, the Government and the President of the Republic. I am sure that we will return to those points when the discussions have taken place in a positive framework—as they will.
I start by saying to the noble Lord, Lord Alton, that I welcome the JCHR report that was published on 20 June and thank the JCHR for its work. As the noble Lord knows, I have given commitments that the Government will respond in due course. It is worth putting on the record that all measures in this Bill are considered to be compliant with the UK’s human rights obligations, including the European Convention on Human Rights, and that the Government are fully committed to human rights at home and abroad. As my right honourable friend the Prime Minister has made clear, the United Kingdom is unequivocally committed to the European Convention on Human Rights. We will respond to those issues in due course, but I wanted to set that out at the beginning, because it is important and part of the framework that the noble Lord has brought forward.
I am grateful to the noble Lord for moving his amendment. He started by giving a couple of caveats. Like him, I am a product of a council estate and proud of it, and like him, Latin passed me by at my comprehensive school—I think some people did it, but it passed me by. That does not mean that we cannot address the substance of the points that the noble Lord and the noble Baroness have made. These important issues deserve full merit and consideration.
Amendments 31 and 41, on changing the mens rea in Clauses 13 and 14 from “knows or suspects that” to “intends that, or is reckless as to whether”, follow the findings from the JCHR. Those findings have unanimous support, and we will return to them in due course. In bringing those amendments forward, the CT-style power is now more in line with the counterterror legislation, which is what the noble Lord is intending. Reasonable suspicion is the same threshold as for the offence in Sections 57 and 58 of the Terrorism Act 2000. In fact, Section 57 does not have a “reasonable excuse” defence; instead, a person must show that
“his possession of the article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism”.
The Section 57 and 58 offences contain no more safeguards when compared with the offences in Clauses 13 and 14.
The mens rea of the current drafting of the clause is designed to enable law enforcement to act earlier and faster to disrupt these criminal smuggling gangs—the very point that the noble Lord, Lord Harper, has alluded to. Day in, day out, these ruthless people smugglers put vulnerable people on boats in the channel or into the back of refrigerated lorries, not caring if they live or die. As the noble Lord, Lord Jackson of Peterborough, mentioned, people have died as a result. Changing the mens rea to require law enforcement to show intention or recklessness would place undue pressure on those on the front line of tackling organised immigration crime and would slow down the response to stopping these evil criminals undertaking their actions. It is right that we do whatever we can to support law enforcement in tackling these criminals at the earliest possible stages of criminality. For that reason, disappointing as I know it will be to the noble Lord, I cannot accept the amendments.
Amendments 32, 42 and 53 seek to change the mens rea for these offences from suspicion to belief. For the supplying and handling of articles and collection of information offences, amending this threshold would significantly raise the bar for enforcement. That is a point made by His Majesty’s Opposition Front Bench, along with the noble Lords, Lord Jackson of Peterborough, Lord Harper and Lord Green of Deddington. I find myself on occasion in company that I am not normally in, but it is right that, if noble Lords are right and make a sensible case, that support is welcome—as it is on this occasion.
A “suspicion” threshold allows for earlier, preventive action, which is a core feature of the legislation. It is designed to enable authorities to disrupt organised crime at the preparatory stage, while still requiring a proper investigation into an individual’s activity, and not in any way damaging a defence’s ability to put up a defence to the prosecution’s case in due course. The shift from suspicion to belief would narrow the scope of these clauses, undermine their preventive purpose, reduce the chance of successful prosecutions and place a greater strain on investigative resources in the first place.
It is important to note that the “knows or suspects” threshold is not novel. It is well established in UK criminal law, especially in regimes aimed at early intervention. For example, under Section 330 of the Proceeds of Crime Act 2002, professionals commit an offence if they
“know or suspect that another person is engaged in money laundering”
and fail to make a disclosure.
Similarly, Section 19 of the Terrorism Act 2000 criminalises failure to disclose information where someone “believes or suspects” it might be useful to prevent terrorism. In both the Proceeds of Crime Act and the anti-terror legislation, the mental thresholds are designed to trigger preventive action and have been consistently upheld in the courts as proportionate and compatible with Article 6 and Article 7 of the ECHR. I go back to the point that the noble Lord, Lord Harper, mentioned: namely, that the offences in the Bill serve a preventive purpose. They are not about punishing people after harm has occurred but are instead about stopping harm happening at all.
I will also speak to the concerns that the current offences might criminalise those who are acting innocently or for humanitarian reasons. Each of the relevant clauses includes the reasonable excuse defence, which is non-exhaustive and allows courts to consider the full context of the person’s action. Any good defence would bring forward those defences if, again, the thresholds were passed by the police and the CPS for bringing prosecutions under any legislation that was ultimately passed by both Houses.
Lord Jackson of Peterborough (Con)
I will take the Minister back to the reasonable excuse in Clause 13(3). I am sure he has a view on why the wording is quite open ended. It says:
“The cases in which a person has a reasonable excuse for the purposes of subsection (2) include”—
these are the key words—
“(but are not limited to) those in which”,
et cetera, including that the organisation
“does not charge for its services”.
Without being too irreverent about this, Albanian people traffickers do not give you a standing order or a direct debit. There might be another way that a payment can be made, but that whole subsection is pretty open ended. Does he have any views on whether it might potentially be misused and abused if it remains as it is?
Lord Hanson of Flint (Lab)
The noble Lord, Lord Jackson, would expect me to defend the Bill. We have taken judgments on the legislation and taken legal advice internally in the Home Office, and we think that that is a reasonable legislative framework for the operations that we are discussing. We will discuss in later clauses the scrapping of the Rwanda Act and that preventive deterrent, but the whole purpose of the Bill is to provide some measures of deterrence and of punishment for offences that aid and assist the dangerous illegal crossings for individuals who, in being trafficked, face very serious injury or potential death.
I want to be clear that these powers are not designed for indiscriminate use. Investigations under these provisions will be intelligence-led and focused on enforcement activity on serious organised crime gangs and their enablers, not on the migrants fleeing persecution or those acting with humanitarian motives. I am not giving the Committee theoretical reassurances: these are reflected in how this will operate. The forces trying to stop the criminal gangs will use any legislation that this House passes to ensure that we act as a deterrent but also, therefore, target those individuals who have committed offences under this legislation. They will have the potential to put forward a defence; the prosecution will therefore have the potential to chop that defence to bits and prove that the actions were malicious, as under the legislation before us.
In summary, these clauses contain strong safeguards, including a list of non-exhaustive reasonable excuses, to protect those acting legitimately and in good faith. These safeguards combine with the investigatory discretion that is at the heart of the police’s focus on the real potential criminals in this process, and with the prosecutions that are taken through the CPS and the prosecutions test for charging decisions to be made. Therefore, in my view, the enforcement is targeted, fair and proportionate.
I hope noble Lords will reflect on those points as we continue our scrutiny of the Bill. I urge the noble Lord and the noble Baroness to reflect on what I have said and to consider whether I have convinced them. That is a matter for them to consider in due course, but at the moment I cannot accept their amendments. I assure the noble Lord that the report he has produced will be examined and we will give a full response in due course. I urge him to withdraw the amendment.
Lord Alton of Liverpool (CB)
My Lords, I am extremely grateful to the Minister for the way in which he has dealt with this group of amendments and for the thorough response he has given to your Lordships in Committee this afternoon. For the avoidance of doubt, I reiterate that the Joint Committee on Human Rights welcomes the overall aims of the Bill—to deter organised crime and prevent the loss of life at sea. It is right that the Government do all they can to ensure there is a legislative framework in place to help eradicate this dangerous criminality. All of us who have spoken in the debate today are agreed about that.
The issue comes down to one of judgment about whether it is preventive, whether it is a deterrent and whether it will really make any difference to those who will anyway try to break these laws. Are we doing the right things to combat this criminality? I do not know all the answers to that any more than the Joint Committee on Human Rights does, but I am grateful for what the Minister said about the importance of the report the committee produced and many of the questions we have rightly raised.
In parentheses, I am glad that organisations such as Liberty take these issues as seriously as they do. They gave very valuable evidence to the committee during its inquiry. You do not have to always agree with the positions of NGOs or groups to know that they are part of the civic response to issues of this kind. We are very fortunate to have such organisations in our country.
Lord Harper (Con)
My Lords, if the noble Lord would give way on a point of agreement, I would be grateful to him. To be clear, I am also grateful that organisations such as Liberty exist and that they have views on things—I just do not agree with them. I too am very grateful that we live in a country where such organisations exist and have contrary views. On that point, we are in complete agreement.
Lord Alton of Liverpool (CB)
I was about to say that I am grateful to the noble Lord, Lord Harper, for the other points he made but, yes, we are agreed about that too. I thank his noble friend, the noble Lord, Lord Jackson, and, on the Front Bench, the noble Lord, Lord Cameron, for the way in which they put their arguments this afternoon. I was not surprised by those arguments, which were put quite eloquently in our committee, incidentally, as some here will almost certainly remember, by the noble Lord, Lord Murray of Blidworth, who was of course a Minister in the last Government. We can disagree about these things without having to fall out over it.
I am grateful to my noble friend Lord Green. We do not agree about many of these questions, but we know there is a public conviction that wants something done about illegality. That is why I argue for safe and legal routes, which my noble friend and I disagree on. We have to find other ways forward of tackling the root cause. I can sound like a broken record about this, but there are 122 million displaced people in the world today and that has doubled in the last decade. If we do not deal with the root causes, we will go on introducing Bills such as this indefinitely, ad nauseam, and will still not get to the root of dealing with the problem.
The noble Baroness, Lady Hamwee, presented the arguments perfectly as she always does. I strongly agree with her remark that we are taking these actions on slight or no evidence. She said that it does not require much for a prosecution. We must not emasculate our laws or commitments to things such as the refugee convention to try to tackle something we all know needs to be tackled; it is a question of striking the right balance.
I have listened to what the Minister has said in Committee this afternoon. He is right that we should all reflect on this. I look forward to seeing what he has to say to the Joint Committee when he publishes his response. For now, I beg leave to withdraw the amendment.
Lord Alton of Liverpool
(c) P derives a financial or material benefit, directly or indirectly, from the supply or offer to supply a relevant article.”Member’s explanatory statement
This amendment gives effect to the JCHR’s recommendation that the scope of the offence in clause 13 should only apply to persons involved in the smuggling of persons for direct or indirect financial or material gain.
Lord Alton of Liverpool (CB)
My Lords, I hope that the Committee will bear with me as I now bring Joint Committee on Human Rights Amendments 33, 35, 38, 44, 57 and 203 for consideration. Amendment 33 appears as amendment 1 in the Joint Committee report and would give effect to the JCHR’s recommendation that the scope of the offence in Clause 13 should apply only to persons involved in the smuggling of persons for direct or indirect financial or material gain.
I described in the debate on the earlier group how Clauses 13 to 17 create three new precursor offences to target the activities of facilitators and organised criminal gangs who look to profit from organised immigration crime. Paragraphs 38 and 50 of the JCHR report conclude that the breadth of the precursor offences captured in those clauses risks
“unintended harms to those who are most vulnerable”
and
“inadvertently criminalising persons who ought to be protected from criminal penalty”.
Ultimately, the scope of the offences is therefore broad, and we should at least consider that.
Paragraph 51 of the JCHR report recommends:
“The Government should give consideration to amending the scope of the offences to ensure that they only apply to persons involved in the smuggling of persons for direct or indirect financial or material gain”.
That is what this amendment seeks to achieve.
I refer again to the examples from Liberty and the ILPA on how the scope of these offences might apply to those who are not smugglers. Amendment 35 would insert, at Clause 13, page 7, line 15:
“For the purpose of subsection (2), a defence of reasonable excuse must be interpreted in accordance with Article 31 of the UN Convention Relating to the Status of Refugees 1951, Article 5 of the Protocol against Smuggling of Migrants by Land, Sea and Air 2000, and section 26 of the Council of Europe Convention on Action Against Trafficking in Human Beings 2005”,
all of which this country is committed to. The amendment would give effect to the JCHR recommendation that the defence of reasonable excuse in Clause 13 must be interpreted compatibly with the UK’s international legal obligations not to penalise refugees, smuggled persons and the victims of trafficking in certain circumstances.
Clauses 13 and 14 provide for non-exhaustive reasonable excuses to the aforementioned precursor offences. They include actions to rescue a person from danger or serious harm and actions taken on behalf of an organisation that aims to assist asylum seekers for free, not making money out of the exercise. The rationale for strengthening that provision is explained in the recommendations in paragraph 51 of the report:
“The defence of ‘reasonable excuse’ ought to explicitly provide that it must be interpreted compatibly with Article 31 of the Refugee Convention, Article 5 of the Smuggling Protocol, and section 26 of the Council of Europe Convention Against Trafficking”—
hence Amendment 35.
Recall that Article 31 prohibits the general imposition of penalties on refugees on account of their unlawful entry or presence in the country where they claim asylum. This protection applies to refugees who come directly from the state where they first faced persecution. In September 2024 the United Nations High Commissioner for Refugees published legal guidance on international protection relating to non-penalisation of refugees on account of irregular entry. It acknowledges that in seeking asylum, many are compelled to arrive, enter or stay in a territory without authorisation or documentation, or
“with documentation which is insufficient, false or obtained by fraudulent means, or by using clandestine modes of entry”.
Article 5 of the Protocol against the Smuggling of Migrants by Land, Sea and Air, of 2000, provides that:
“Migrants shall not become liable to criminal prosecution”
for the fact of having been smuggled with intent by persons
“in order to obtain, directly or indirectly, a financial or other material benefit”.
Article 26 of ECAT provides for a “Non-punishment provision” for victims of human trafficking who have been engaged in illegal activities provided that
“they have been compelled to do so”.
As the noble Lord, Lord Harper, mentioned during his remarks earlier, we will hear later from the noble Baroness, Lady May, on the subject of human trafficking. In circumstances where victims of trafficking have committed an offence of supplying or handling relevant articles or collecting information likely to be useful in immigration crime, they must not be prosecuted if the commission of these offences was as a result of trafficking. Any prosecution of victims in such circumstances would be in breach of Article 26 of ECAT.
Baroness Hamwee (LD)
My Lords, I support almost all the amendments from the noble Lord, Lord Alton. I said to him yesterday that I thought that the committee’s work had been—I thought carefully about this word—painstaking.
My name and that of my noble friend Lord German are not to a couple of the amendments because he and I had already tabled amendments on the same point when the noble Lord’s were tabled. My noble friend will pursue the point of a defence of not doing action if one was not doing so for financial gain—the same point, in effect, as the noble Lord, Lord Alton, has made. As my noble friend has said, and we are going to go on saying, the clauses in the Bill should not sweep up asylum seekers, whom one could also describe as victims of smugglers.
I have Amendment 51A, which I picked up from the JCHR report, to add to the list of excepted articles in Clause 15. One of the things that people in this situation, and I am thinking of the asylum seekers now, must feel that they are losing is their dignity. The JCHR suggested adding—“At a minimum”, to use its words—hygiene products. If one is without hygiene products, that adds to one’s sense of a loss of dignity, a loss of looking after oneself as a real person with a proper place in the world, and so on. It is a matter of proportionality.
Lord Alton of Liverpool (CB)
The noble Baroness is quite right. This issue was specifically raised by Mr Alex Sobel, Member of Parliament for Leeds, who encouraged us to include those words about hygiene. It was based on exactly what the noble Baroness has just said about our concern for human dignity. We talk a lot during these debates about human rights, but let us also remember human dignity.
Baroness Hamwee (LD)
I think one has a right to human dignity, actually. That is probably a point at which I could stop and commend the amendment.
Lord Harper (Con)
I thank the noble Lord, Lord Alton, and the committee for the very thorough discussion they have had on the issues in the amendments. I have three points to make on what the noble Lord said. He will be pleased, I hope, that on at least one of them I am in some measure of agreement with him.
I have some measure of agreement with the amendments that talk about those who have been trafficked. There is quite an important language point here on trafficking and smuggling. I make a distinction between those who have chosen to pay people smugglers to facilitate their journey across the channel and entry into the United Kingdom and those who have been forced to do so against their will. I have more sympathy for the aspect the noble Lord spoke about—where they are not party to their trafficking. I think the use of “trafficking” in this case is very important. There is a distinction, and I am more sympathetic to that.
As the amendments are currently drafted, they would sweep up a number of conventions. I am just about to move on to the bit where I part company with the noble Lord. If he—or the Minister—were to come back later in the Bill with something to tighten up the protections for those who have been trafficked, that would be welcome.
Where I part company with the noble Lord—there has been extensive discussion and, to be fair to the Joint Committee, it acknowledges that there are different views on this—is on Article 31 of the refugee convention. It protects refugees who come directly from the state where they face persecution. There is a very extensive discussion in the Joint Committee’s report on what coming directly means and the extent to which you are allowed a stopover—brief or not. It quotes some eminent legal views that a brief stopover—in other words, in France—does not stop people coming to the United Kingdom. But it also says that that view is not universally shared. I have to say, it is not a view I share.
I think it is one of the reasons the public find this issue so troubling. I do not think the public have a problem with people who come directly from a state in which they are fleeing persecution and we give them support. I will cover two examples where I accept there were safe and legal routes. When I was a Member of Parliament, literally nobody in my former constituency had a problem with the route we created to protect those fleeing from Ukraine. Not a single person wrote to me complaining about that, because people saw that they were coming directly from a country that was at war and had been invaded. We created a route, and they supported that. Similarly, we had a scheme which enabled people, who we had a historical obligation to, fleeing the communist regime in Hong Kong to come to the United Kingdom.
This is a problem because you have people in France who have come through a number—not just one—of European countries across land. They have entered the European Union in Greece and have come through a number of safe countries, spend quite a bit of time in France, then make a journey to the United Kingdom. I think a lot of people think that is not the situation envisaged by the refugee convention. They feel that that is our country being taken advantage of, which is what causes this pushback. That is what the Bill is trying to stop and there is a legitimate debate about that.
It may be that we need to have a sensible international discussion about whether the 1951 convention is fit for purpose in the circumstances the noble Lord set out, where there are 120 million or so people who are refugees. They cannot all be accommodated in countries such as the United Kingdom. If we were to try to do that, we would find no support among the public and we would stop people who had a legitimate reason to be here.
There is one part of the reasonable defence thing here where I think that the Government are perhaps being a little too generous. There are people who do not charge for their services who are genuinely well meaning; there are other people who fundamentally do not agree with having borders or Immigration Rules and sticking to them. The rules in the Bill are a little too generous. They do not have to be part of smuggling gangs but those organisations that are set up in France to make it easier for people to make those journeys should not be let off any culpability in this, whether or not they are charging for their services. If you know that people are making journeys that are unlawful and dangerous, and if you are helping people to do that, we should try to deter you. There is a legitimate argument about whether the Bill gets everything right, and people may argue that the penalties are too harsh or that this is not the right way in which to do it. But I think that there should be some sanctions.
Baroness Chakrabarti (Lab)
My Lords, I apologise for not being here for the first day in Committee. I was with colleagues as part of the UK delegation to the Council of Europe. Of course, I spoke at Second Reading.
Sadly, after the debate on the previous group, it seems that I have to declare an interest as the former director of Liberty. It is not something that I do very often but, given some of the disparaging remarks about my former employer, I thought I had better declare that as some kind of interest. Apparently, to have worked for a cross-party or non-party human rights NGO is now an issue. I should add that in my many years working at the National Council for Civil Liberties, I worked across this House and the other place, including with some very senior Conservatives, who believed very much in fundamental rights and freedoms. I guess that was then and this, unfortunately, is now.
As a preliminary point, on the previous group I was slightly flummoxed by contributions from across the Committee on the Clause 13 offence and defences. Forgive me, I have been a lawyer for only 30 years, but it is easier to prove that I was reckless in my behaviour than to prove that I had actual knowledge or suspicion. If I am right about that, I am flummoxed by every contribution from around the Committee on whether it should be knowledge and suspicion or intention and recklessness—but that was the previous group.
In relation to this group, I have to commend the noble Lord, Lord Alton, and his committee and, indeed, the noble Baroness, Lady Hamwee, for amendments that square very well with—I will not call it a platitude—the caveat that the noble Lord, Lord Harper, gave to his other comments: that he does care about genuine refugees. If I am to take that as a real commitment to genuine refugees who are not abusing or playing any system but are in peril in their home country and fleeing persecution, if that is the commitment—I know it is the commitment from my noble friend the Minister—then I suggest that none of the amendments in this group contradicts the intention that we are going for the smugglers, going for the traffickers, going for the people who are making money out of people’s desperation, but not going for innocents.
Of course, the nature of protecting genuine refugees is that you do not know who will turn out to be a convention refugee until you process them. That means that we have to be a little bit careful about how we go after the people who are coming before we have actually considered their case. To go back to various comments that have been made about the historic origins of the refugee convention, I just remind the Committee that this was the world’s apology for the Holocaust, and that people who fled the Nazis in the 1930s often had to do so by irregular and clandestine means. For those who need a reminder, I recommend “Julia”, the 1977 Fred Zinnemann film starring Jane Fonda and Vanessa Redgrave. It would not be a bad thing for every participant in this Committee to revisit that Oscar-winning film, perhaps over the recess, before coming back for many more hours of deliberation on this Bill.
The reason that these amendments are good ones that do not undermine the intention of the Bill but actually speak, to some extent, to the slightly confusing debate on the previous group is, first, that they make it clear that we are going after the people who are monetising this desperation, perpetrating the evil trade and putting people’s lives at risk in the English Channel. The amendments put that squarely into the Bill. Secondly, they refer to the refugee convention, which I know will raise some hackles on the Benches opposite. I believe it is the Government’s intention to comply with the refugee convention as well as the European Convention on Human Rights. The European Convention on Human Rights has to be dealt with on the front cover of the Bill, as per the Human Rights Act. The Human Rights Act will also be the interpretive method for looking at the Bill, but there is not anything like that for the refugee convention. What there is instead is a tradition that was begun by a previous Conservative Government in the Asylum and Immigration Appeals Act 1993. Check the date: it was a Conservative Government, if I have my history right, who introduced the principle, initially into the Immigration Rules, that the refugee convention has primacy in the context of treating refugees, because the intention of that Government, and previous Conservative Governments, was to comply not just with the European Convention on Human Rights but with the refugee convention as well.
Because we have moved towards criminalisation—not just considering claims, appeals and removals—it becomes important that the refugee convention provides a defence for various immigration offences that are subsequently created. That is why the Joint Committee on Human Rights—a wonderful institution of this Parliament—has stepped in to make sure that no prosecution or conviction under any of these offences will offend the refugee convention. I can put it no better than the noble Lord, Lord Alton, who said that we do not want to use these offences. It cannot be the Government’s intention that these offences and prosecutions are for the victims rather than the smugglers. That is the best comment I can make in support of this group.
The noble Baroness, Lady Hamwee, a long-term advocate of the most vulnerable and refugees in particular, has an obvious point about feminine hygiene products. It would be strangely gendered for the Government not to consider adding that to food, et cetera, when we are talking about human dignity. I commend all these amendments to the Committee.
Lord Jackson of Peterborough (Con)
My Lords, I was not intending to speak, because my noble friend Lord Harper made an excellent contribution, but I cannot let the peroration of the noble Baroness go without some response. Her arguments would carry somewhat more weight had she not resisted every attempt at a pragmatic, practical approach to the protection of our borders and the safety and security of our country—the first duty of a Government—through many pieces of legislation, not least the Rwanda Act, which many of us were involved in over the past couple of years. She and other noble Lords like her have never conceded that this is an issue. They want to go forward with this canard that the Conservative Party has in government and in opposition swung to the right—
Baroness Chakrabarti (Lab)
I am grateful to the noble Lord for giving way. First, I pointed out the Asylum and Immigration Appeals Act 1993, which is Conservative legislation. I could have gone on. I know that the noble Lord thinks my peroration has been too long already, but we can compare the minutes afterwards in Hansard of how long people are banging on. I was trying to point to a long and noble tradition in his party of caring about the refugee convention and trying to do what the noble Lord, Lord Harper, suggested we must do: differentiate the genuine refugees, who need to get here and be processed and considered before you can separate the wheat from the chaff.
Secondly, the noble Lord should not let the fact that the messenger is unattractive to him be to the disadvantage of the amendments—try to ignore me and just consider the amendments in detail. I suggest that they do not offend his ambition of controlling borders or the ambition of the noble Lord, Lord Harper, of differentiating between perpetrators and gamers of the system and people who may well turn out to be genuine refugees. The noble Lord, Lord Harper, has made points about the public on many occasions and their warmth towards desperate Ukrainians, Hong Kongers and so on. Those people were rightly given safe and legal routes to the United Kingdom, in a way that Afghans, Sudanese people and others in equally dire straits were not. The drafters of the refugee convention always understood that that might happen and that some desperate people might have to flee by irregular routes. You do not know who is a refugee and who is not until you have considered their claim.
Lord Jackson of Peterborough (Con)
I do not deprecate the remarks of the noble Baroness. I find her always passionate and compelling, and she added greatly to the strength, colour and nuance of the debates we had over the last two years on the Rwanda Bill and other legislation, so I am not shooting the messenger.
The noble Baroness pre-empts my comments. I was going to say that my party has had an outward-looking, internationalist, liberal approach to bringing into this country the brightest and the best. Going way back, from the Ugandan refugees who were expelled by Idi Amin, and the Asian folk from India and the Indian subcontinent, to, as the noble Baroness says, Syrians, Ukrainians and Hong Kongers, we have a very proud record of welcoming people from different cultures. However, it is important to make the point that it is not strange that nine countries in the European Union are demanding that the provisions of the European Convention on Human Rights are revisited because they are simply not working and are not equal to the geopolitical challenges alluded to by the noble Lord, Lord Alton of Liverpool, around the mass movement of people.
Baroness Chakrabarti (Lab)
I am sorry to interrupt the noble Lord again. I want to move away from me and go back to the amendment. I suggest to the noble Lord, Lord Jackson of Peterborough, that the amendments make that distinction, because the refugee convention will be of no avail as a defence to anyone who does not turn out to be a refugee. The convention’s principles are non-penalisation, non-discrimination and non-refoulement. Whatever the other defects, the Committee ought to be able to unite around those principles.
Lord Jackson of Peterborough (Con)
Before I look at the specific critique of the amendments put forward, I take the comments by the noble Baroness on face value. However, I know that, when my party were in government, those on the other side, the Liberal Democrats and many Cross-Benchers took issue with age-verification tests and other attempts by the state to determine the bona fides of people with respect to their age and background, and whether they were truly subject to oppression, mistreatment, or the misuse of the criminal system in their countries. At every step, those were opposed. It has proven difficult for us to focus on those who are genuinely in need of our support, as my noble friend Lord Harper said.
By the way, I support the very sensible amendment tabled by the noble Baroness, Lady Hamwee, about dignity products. Any sensible, sentient, caring, compassionate person would do so.
I end my slightly odd preface to these comments by saying that we have a responsibility. We are not elected, but we should nevertheless reflect the very serious and significant concern among the public about these issues. Many people would be horrified by this otherworldly obsession with the minutiae of amendments when we have a national crisis affecting our borders and the safety and security of our country. We have a responsibility to address that.
Baroness Chakrabarti (Lab)
I am sorry, but this is Committee, where we look at the minutiae of amendments. I plead with the noble Lord, Lord Jackson, to look at the amendments in this group and at my suggestion that they do not offend his ambition to control the borders and to differentiate between those gaming the system or monetising an evil trade and those victims of trafficking and potentially genuine refugees. It is not about what I have said in the past, who I am or the NGOs that the noble Lord does not like; it is about the specific amendments, because this is Committee in the House of Lords.
Lord Jackson of Peterborough (Con)
I am aware of that. I am merely drawing to your Lordships’ attention the fact that there will be real-world consequences from the interpretation of the legislation when it finally gets Royal Assent and becomes an Act.
As has been said by my noble friend Lord Harper, there are other individual groups who have a vested interest—perhaps for the right reasons—to not consider the security and safety of our border. They are perfectly entitled to believe in there being no borders and in a very loose and liberal interpretation of immigration policy. However, we must be careful when we legislate that we do not allow those people—who are massively out of step with the views of most of the public—to put in the Bill, through advocacy, something that will not be in the long-term best interest.
I cannot add anything more to the excellent points on Amendment 33 made by my noble friend. I oppose Amendments 35 and 44. Although it looks on the face of it beguilingly attractive that we should not be in breach of international treaty obligations which we have signed, my concern is that this is a moveable feast. To put in the Bill quite a prescriptive, tight and draconian interpretation of an international regime which may well change over the next few years is not appropriate. I have no doubt that the 1951 refugee convention will evolve—for the better, I hope—and that certainly the ECHR will be reviewed, as it is not only people in the UK who are concerned about it. The amendments are well meant and make a strong argument, but they would tie the hands of our own judiciary and Ministers.
Lord Alton of Liverpool (CB)
I do not wish to detain the Committee now, but will the noble Lord, at some point between now and Report, at least have a conversation with me about what he thinks is draconian in these international conventions to which we are already a signatory, and which these amendments will simply ensure that we act upon in the way that is suggested in things that we are already signed up to?
Lord Jackson of Peterborough (Con)
I am always more than happy to have a conversation with my friend the noble Lord. However, as the Minister himself said not that long ago, the Bill in its entirety is compliant with the current legislation in respect of the Human Rights Act and the European Court of Human Rights. It would be otiose, and at the same time restrictive, to put this stand-alone amendment in the Bill. It would encourage what I have previously described as judicial activism, which we have seen in the immigration tribunal and has been featured in the Daily Telegraph quite regularly. I do not think that is helpful; it would undermine the faith and trust that people have in the criminal justice system. For that reason, I do not think the Bill should be amended in the way that the noble Lord proposes, but I am always happy to be persuaded by him.
Lord Green of Deddington (CB)
Noble Lords will be aware that I have been concerned with immigration matters for about 25 years. I have not paid much attention to asylum because the numbers were much smaller, but they are now significantly greater. I repeat my warning that we really need to have our feet on the ground if we are going to deal with the scale of what is now in front of us. The public need to know that their concerns are understood and are being acted on. That is not yet the case and it needs to be done.
Lord Deben (Con)
My Lords, perhaps it is possible to bring both sides together on this issue. I have a long history of being attacked for my views on this. I was the Member for Lewisham West when we brought in the east African Asians, and I remember the appalling attacks that one had for supporting Ted Heath and the Conservative Government at the time. I want to underline the long history of Conservatives being supportive of proper attitudes towards human rights and asylum. But it does not help us in this discussion if we miss out two different things.
The first is that we need to support international agreements, because this is not going to get any easier. I will not bore the Committee on the question of climate change, but if anybody thinks we have real problems of immigration now, the kind of weather changes we are going to have will mean that there will be a lot more people moving not for economic reasons but because they can no longer live where they are born. We have to realise how serious the issue of immigration right across the board is going to be. One has to take this very seriously, but that means we should be very careful about protecting the rights of asylum seekers. We did not just do this because of the Holocaust, although that was the proximate pressure. There are people who are treated in a way that makes life in their countries absolutely impossible, and they cannot leave by some accepted rule or open system. They have to hide and escape, and we need to take them very seriously.
The other thing we have to remember is that there is widespread concern about the number of immigrants who have come into this country and who are likely to do so. This Committee must not ignore that fact. But if we are to accept both those things, we have to be very careful that the legislation we pass is truly consonant with the international agreements we have. We also have to be extremely careful that we do not say, every time there is an amendment, that somehow there is something unsuitable behind it.
These amendments are technical. I do not agree with them all, but the Committee has to accept that they are important. To dismiss them as if they were merely the product of people who always oppose any kind of restraint on immigration seems unfair and unworthy. I also happen to think that many of us opposed the Rwanda proposal because it was a load of old rubbish—because it was not going to work. That is why we opposed it, not because we did not understand the importance of the issue but because it was not the right answer. Frankly, to suggest that because we did not agree with the Rwanda concept we are somehow wet on this subject seems untrue and very unfair.
We in this House are surely in the business of discussing these matters in detail and carefully. The noble Baroness, Lady Chakrabarti, and particularly the noble Lord, Lord Alton, have rightly brought to our notice some important issues that we have to get right. They may not be the right amendments, but we have to discuss them without automatically believing what the noble Lord, Lord Alton, who has a long history of defending those who are not otherwise defended, has brought to our notice. I am pleased that we have been discussing it. I think we will find that he withdraws or does not move the amendments and thinks again about which ones he wishes to press.
I hope we will treat this with the seriousness it deserves, which means, first, recognising the national concern about numbers and, secondly, trying to make a proper distinction that protects people who flee from terrible regimes. I would like everybody in this Committee to think once again how blessed we are that we are not in that position. If we are blessed in that way, we should think carefully about those who are not.
Baroness Fox of Buckley (Non-Afl)
My Lords, every time I speak after the noble Lord, Lord Deben, I feel as though I have taken on the headmaster. Having been admonished, I tread carefully. I have wanted to comment on this group of amendments from the beginning. The fact that the debate has become quite fractious and animated in some ways indicates what my original concerns are and why I wanted to ask the noble Lord, Lord Alton of Liverpool, in particular, to clarify something.
Lord Faulks (Non-Afl)
My Lords, I make just one technical point. We are here to discuss whether or not these amendments are going to work if they are passed.
Amendment 35, for example, deals with the defence of reasonable excuse by reference to a number of international conventions. I am a bit concerned as to how a court is going to direct a jury in respect to that. Certainly, it is arguable that they should reflect those conventions. As the amendment is currently framed, that is going to be legally very difficult. It is not normally the way these things are done. There should perhaps be some definition which embodies what is contained in those conventions, rather than simply reciting them as a list, because I do not think a court is going to find that very easy to interpret.
Incidentally, I entirely agree with the noble Baroness, Lady Chakrabarti, that the insertion of the word “reckless” does not help in terms of clarity. It is one of the most difficult words in the legal context. Courts of all levels have struggled to find any clarity with the word “reckless”.
Lord German (LD)
My Lords, the debate has obviously spanned beyond the amendments before us, but it is worth stating at the outset that the focus of these amendments is to determine that the provisions are aimed at the particular people who are breaking the law—the smugglers. The focus has to be that it helps law enforcement and the judiciary to focus their resources on the people that the Government really want to apprehend in order to tackle the criminal gangs. There are words—which I will come to in a moment—on which I agree a different definition might be more helpful, but it is worth while repeating the words of the noble Lord, Lord Deben, about the international regulations and rules that guide us and we put around ourselves and the importance of those.
I am reluctant to go into this field of the reinterpretation of the ECHR, but one mistake relates to the fact that some countries signed an unaddressed letter which gave no indication whatever of what changes to the ECHR they were looking for. The person who was supposed to receive it read about it in the newspapers. I contrast that arrangement, where nothing could be made of the letter because it gave no sense of what was to be changed, to the approach of the British Secretary of State for Justice, who approached the matter in a proper manner and spoke to the people concerned, the right Committee of Ministers, who are responsible for any review of the ECHR. There is already a set of motions in place to enable that discussion to occur. It would be worth while trying to understand what people in other countries want to do and what they need to happen in order to change, but those discussions are under way because, essentially, this is a living document that needs to be changed, interpreted and looked at as time goes by, and that is happening at present.
We should be clear that these amendments would simply treat the people who are coming here with a deal of compassion. I absolutely agree that we have to separate genuine asylum seekers from the rest. We cannot do that by our own legislation until they arrive here. There are no routes by which people can arrive here, apart from the few which would not affect the people from the countries who are most affected in this matter. What makes sense with these amendments—maybe not entirely in the words they use—is that they are trying to distinguish who we are going for and who we are gunning at, as it were.
Amendment 33 seeks to ensure that the scope of the offences in Clauses 13 and 14 apply only to the smugglers. The amendments seek to link the offences to financial and material gain. If there is another way of explaining the financial and material gain as being the method by which you determine a smuggler, then obviously it would be worth noting.
In that respect, I took note of what the noble Lord, Lord Harper, said about how to deal effectively with the migrants situation. Fortunately, I went to visit the site of the Jungle in Calais two weeks ago. It is now fields; there is nothing there but fields, grass and animals grazing, and that is because the French authorities dealt with groups of people to make sure that they fit with the strategy they are adopting. They had no complaints about the way that was working at the present time. Maybe times have changed, and maybe people need to be thinking differently.
Amendment 35 proposes that the defence excuse in Clause 13 should ensure the protection of
“refugees, smuggled persons, and victims of trafficking, in certain circumstances”—
and that is the question. In mentioning “certain circumstances”, one needs to define what those circumstances are; otherwise, the courts would not be able to make the appropriate case work.
Amendment 38 suggests that the scope of offence of Clause 14 should include for financial or material gain. That is the distinguishing factor between those who are smuggled and those who are not.
Amendment 44 suggests that the defence excuse in Clause 14 should ensure protection of
“refugees, smuggled persons, and victims of trafficking, in certain circumstances”.
Again, one has to define the words “certain circumstances”, because otherwise it becomes too general.
Amendment 57 suggests that the reasonable excuse defence in Clause 16 should ensure the protection of
“refugees, smuggled persons, and victims of trafficking, in certain circumstances”.
Again, that wording needs to be tightened up.
Finally, Amendment 203 would provide
“a statutory defence for refugees in certain circumstances”
for the offences in Clauses 13, 14 and 16. Obviously, there is a need for tightening up in this matter to ensure that we can separate out the people for whom the Bill is intended to deal with: those who are causing the misery, those who are trafficking and those who are smuggling and those who are spread around Europe to make sure that these schemes work. These are the people whom the Bill should be aimed at and is aimed at. All these amendments would do is make sure that we entirely focus our efforts on those people who are causing these criminal acts.
Therefore, I suggest that these amendments have a right sense of direction in what they intend. They enshrine the international regulations which we sit within. It is not just one convention; it is quite clear from the opening speech of the noble Lord, Lord Alton, that there are a raft of international conventions, laws and rules that we sit behind. We are part of that international way of dealing with matters, and if we lose that way of dealing with it and do not follow it through, we will never be able to solve something which is so international in its nature.
Lord Cameron of Lochiel (Con)
My Lords, I am grateful to all noble Lords for their speeches in this group. Again, I listened very carefully to the noble Lord, Lord Alton, and the rationale behind these amendments. The general thrust of all noble Lords’ amendments, however, is to seek to impose further limits on the exercise of legal powers designed to tackle people-smuggling gangs and their supply chains.
On all these new offences, we need to be both clear and bold in providing our law enforcement agencies and our courts with the legal tools and powers they need to be robust in tackling the gangs, who are both the root cause of and the major beneficiaries from this problem. We on these Benches have rightly criticised the Government for the rhetoric around smashing the gangs—which in our view, at least at the moment, is empty rhetoric—but it is a clear fact that we need to tackle the criminal gangs, and it is right that we use this as an opportunity to shape our legislative framework so that we can do that as effectively as possible.
Amendments 33 and 38 in the name of the noble Lord, Lord Alton, would add an additional demand: for the person to have committed an offence, it must be demonstrated as well that they have financially benefited from the supply of a relevant article for use in connection with an offence. Again, I understand the rationale and the intentions behind the amendment, but I put myself against it and support the current Government—again, a slightly rare position to be in. Unlike other aspects of the Bill, it seems clear to us on these Benches that, as it stands, the text of Clauses 13, 14 and 16, which create these offences, is adequate, clear and sufficient.
Lord Hanson of Flint (Lab)
My Lords, I thank the noble Lord, Lord Cameron of Lochiel, for his comments. I do not think there will be very much difference between us on this, and he has made some very strong points which I may echo in my remarks to the Committee.
I just want to re-emphasise three points which are important to the consideration of these amendments. First, the gangs are the targets of the Government’s action, not the people who are seeking asylum or refugee status, or even the people being trafficked without either of those two issues being the reason. The gangs are the targets.
Secondly, the noble Lord, Lord Alton of Liverpool, made much reference to the Joint Committee report on the Bill, a copy of which I have for ease of understanding. I just reaffirm to him that it is the Government’s intention to respond to that report prior to Report. Some of the issues that he is bringing forward as amendments to the Bill are recommendations from the report, but we want to examine the report and give a full response to it before Report. So he will have the opportunity to examine the Government’s response prior to tabling any amendments on Report.
I noted, just out of interest, that there were, I think, 12 Divisions among members of the committee during its consideration of the report on Wednesday 18 June, so there was never unanimity even within the committee on what it should say. Therefore, it is even more important that the Government examine all those concerns and reflect on the 12 Divisions that took place, as well as the unanimity in the report that was finally produced after that. It is important that I say that.
Lord Alton of Liverpool (CB)
I recall that I was keen to tell the noble Lord, Lord German, that in fact paragraphs 1 to 52 had been agreed unanimously. There were Divisions in the report—I mentioned that—but the Minister will be pleased to know that the Labour members of the committee voted in favour of it to a man and woman.
Lord Hanson of Flint (Lab)
I am always pleased to know what my comrades in arms in both Houses have done, and it is important that the Government reflect on all points of view. I simply make the point that there will be a response to the committee’s report prior to Report, and those nuances will be examined as part of the discussion.
The third point that the Government want to put on record—I have said this in earlier discussions—is that the United Kingdom is unequivocally committed to the European Convention on Human Rights, and the measures in the Bill support that aim and are compatible with UK human rights obligations. That leads directly to the points made by the noble Baroness, Lady Fox, and the noble Lords, Lord Harper and Lord German. Those are the three important principles: gangs are the target; we will respond to the report; and we believe we are compliant.
Lord Jackson of Peterborough (Con)
I am grateful for the forbearance of the Minister. While he is in a pensive mood, will he confirm that there is a possibility, at least, that the Government’s current review of Article 8 of the European Convention on Human Rights, which was announced on 30 March, may well be concluded by the time that we get to Report or Royal Assent to this Bill, and would potentially feed into any further amendments that the Government brought forward?
Lord Hanson of Flint (Lab)
As the noble Lord knows, the Government are reviewing the issue of Article 8, but intend to do so in a way that examines judicial discretion on Article 8 and potentially looks at how we can improve performance on that issue. It does not mean that we will be withdrawing from Article 8, or indeed from any aspect of the convention. I think it is important that consideration is given to those issues.
If I may, I turn directly to the amendments before the Committee today. I start with Amendments 33 and 38, which seek to add the requirement that one can be prosecuted under these offences only if an individual derives financial or material benefit from engaging in the offence. These offences, as I said, target criminal gangs at the early planning stages, when financial or material gain is often not yet evident. For the very reasons that a number of noble Lords have mentioned, introducing the requirement in the clauses for gain would significantly constrain law enforcement’s ability to intervene early and disrupt organised crime groups before a crossing occurs or money changes hands. Given the complexity of cash flows in these criminal cases, it is impractical to exempt those without apparent financial or material gain, and doing so would shift the burden of enforcement to prove gain, undermining effective prosecution.
Additional amendments to this clause do not take into account the wide range of complex agreements that might be considered when engaging in these events—for example, substantial benefits in kind for engaging in the activity—and with such amendments, people would never be guilty of an offence. Again, these are complex issues, and for the very reasons that the noble Lord, Lord Deben, and the noble Lord, Lord Green, mentioned, there will be continued pressure, and it will be continually ramped up. Even now, I can update the noble Lord, Lord German, that the President of France has made reference to the fact that we need to have international co-operation in his address to both Houses a few minutes ago, and that there will again be consideration of joint action on the criminal gangs, for the very reasons that the noble Lords, Lord Deben and Lord Green of Deddington, mentioned, because it is a nationally important issue that needs to be resolved and there will be increasing pressures.
I just say to the noble Lord, Lord Alton of Liverpool, who moved the amendment, that I do not think it would be appropriate or proportionate, particularly given the life-threatening risks posed by people smuggling, for his amendments to be accepted. They would undermine the opportunity for early intervention that the offences are designed to examine and stop. Where there is evidence of involvement of organised criminal activity, where lives are endangered and where our borders are undermined, those individuals would rightly be liable for prosecution, regardless of whether financial or material gain can be demonstrated.
There are going to be pressures: the noble Lord, Lord Deben, mentioned them clearly. It is an important issue—I cede that to the noble Lord, Lord Green of Deddington. In order to deal with these issues, we need to have some potential powers of criminal action, and I am grateful for the support from the noble Lord, Lord Cameron, from the Opposition Front Bench.
Turning to Amendments 203, 35, 44 and 57, Amendment 203 would add the offences in Clauses 13, 14 and 16, as well as the offence of illegal entry under Section 24 of the Immigration Act 1971, to Section 31 of the Asylum and Immigration Act 1999. This section currently protects refugees from being punished for certain actions that they may have to take to reach the UK. Amendments 35, 44 and 57 would similarly make it difficult to prosecute an individual were they to engage in this crime and seek to claim refugee status. Those are the issues that the noble Lord, Lord Faulks, referred to, which are keen issues that the Committee needs to consider.
I just emphasise again that these offences are targeted not at refugees but at the vile people smugglers. The amendments would provide a potential defence to individuals, even if the commission of the offence had nothing to do with conduct that was necessary to arrive in the UK. As such, an individual could be absolved from all sorts of behaviour, including engaging in offences before arriving in the UK, creating a loophole for anybody who wished to commit those offences. I reassure the Committee that care has been taken by officials in the Home Office, with ministerial support, to ensure that these offences have the flexibility to target the smuggling gangs but do not unjustly impact or endanger those who are exploited by these criminal smuggling gangs.
Each clause has a non-exhaustive list of reasonable excuses, including one for those acting on behalf of an organisation that aims to assist asylum seekers and does not charge for its services, and those intending to act in the rescue of a person in danger. Indeed, Clause 15 contains a carve-out of humanitarian items that cannot be considered under Clauses 13 and 14, plus carve-outs under Clause 16 for academics, journalists, rescuers and those seeking to provide those humanitarian services that are necessary. These safeguards, when combined with investigatory discretion in prosecutions and the public interest test for charging decisions, ensure that enforcement is targeted and proportionate.
Baroness Chakrabarti (Lab)
Given that my noble friend knows what the noble Baroness, Lady Hamwee, means, and given that he has parliamentary counsel at his disposal, might he consider a government amendment that adds “female sanitary hygiene products” to a list that currently includes food, drink or medical products?
Baroness Hamwee (LD)
I understand the point that the Minister is making. The JCHR report actually used the term “hygiene kits”, and I did not understand what those might be. They sound a little bit like the complimentary items you might get in plastic wrapping that you cannot undo in in a hotel. Would the Minister agree that we might have a discussion about this? It would require regulations to change the list of articles in Clause 15. It would be far better if we could talk about this as a sensible, non-political point and get it into the Bill.
Lord Hanson of Flint (Lab)
I remind the Committee that this offence criminalises not specific articles but those who supply. I do not see a realistic scenario in which items mentioned in Amendment 51A, when used for their intended purposes, could be used in connection with an offence under Sections 24 and 25 of the Immigration Act and therefore fall within scope of this offence. However, I understand the intent of the noble Baroness’s amendment. There are legal safe- guards, and we can reflect on this and have a discussion around it. I hope she recognises that the points I have made are equally valid, and that she does not move her amendment. We can examine this issue outside of the Committee.
I hope that noble Lords feel able to withdraw or not move their amendments. Once we have responded to the report, the noble Lord, Lord Alton, can return to any of these issues on Report.
Lord Alton of Liverpool (CB)
My Lords, I am grateful to the Minister for his response to this long list of amendments. I apologised earlier to the Committee that, inevitably, it was going to take time to get through them all.
We are agreed about one thing. The Bill is there to target those who are profiting from organised crime. There is no disagreement in the House about this. It is not a binary choice between the victims or the profiteers. The people they are exploiting need to be protected, but at present, there is a risk that the most vulnerable are caught by some of these offences. Again, we are agreed about that; how we do it is what matters. It is the role of committees such as the Joint Committee on Human Rights to scrutinise these things in detail—even issues such as hygiene kits. That came up as an amendment in the committee from one of its members, who said that the Government should at least examine this. It is on page 67 of the report, which details amendment 8, which inserts “hygiene kits” in Clause 15, thereby extending the list of included items.
I am grateful to the Minister for his responses to the noble Baronesses, Lady Hamwee and Lady Chakrabarti. This issue can be looked at outside of our proceedings. I will take away the points he has made, and those of all noble Lords who have participated in this excellent debate. I will make a couple of brief remarks. The noble Lord, Lord Deben, talked a lot about the international agreements that have been entered into. Our duty is to comply with those. They are living documents, open to challenge and amendment. I agree with the noble Lord, Lord Jackson, in pressing the Government, as I have done previously, to let us know as soon as possible, before Report, what their thinking is on Article 8 of the ECHR.
It was not just the ECHR that I referred to in these amendments. We also referred to the protocol against smuggling and Article 26 of the Council of Europe Convention on Action Against Trafficking in Human Beings, published in 2005, to which we are a signatory. These are important questions that we must always benchmark our actions here against. It is not that we are caught in a trap of international agreements; we, as a nation, have entered into them, and they are obligations we must live up to.
As far as the interpretation of the courts is concerned, my noble friend Lord Faulks made a very good point. Just as there needs to be further training—for instance, in lower-tier tribunals, a point we have discussed previously—it is not beyond the ability of our judges to give direction on many of these international conventions, which all of us are very familiar with anyway. Regarding Article 8, the Danish Government and others would not normally be regarded as hostile to international action. Donald Tusk was one of the signatories of the email that the noble Lord, Lord German, referred to earlier—it had no destination but caused quite a lot of controversy inside the Council of Europe and the European Court. It has provoked a debate, which was overdue, on whether that interpretation of Article 8 is correct. We all welcome that.
The noble Baroness, Lady Chakrabarti, said that we should go after the people who are monetarising this issue. She is right. She is also right that we have had a fine tradition in this country. She said that it was the world’s apology for the Holocaust to introduce the European Convention. A lot of other factors were involved there, but we all know that British lawyers, British politicians and the Conservative Party leadership at that time were deeply committed to the creation of European scaffold to govern some of these questions. Times have changed, and some of the challenges are different. That is not a reason for walking away from our obligations. It is a reason for standing together with others who want to make sense of these things, so that we protect those who are at risk and ensure that we go after those who are acting in a criminal manner.
I will take back to the Joint Committee the points the Minister has made. I am grateful that he will respond before Report. That will give us a chance to decide on amendments of a similar nature, or others which work in the eyes of the Government. We can continue to discuss this outside Committee, and whether it is possible to bring them back. For now, I beg leave to withdraw the amendment.
Lord German
“(c) their action was—(i) solely as part of their own journey, and(ii) they did not gain financially from the action.”Member's explanatory statement
This amendment seeks to ensure that the new criminal offence is targeted at people smugglers rather than those seeking asylum by amending the statutory defence.
Lord German (LD)
My Lords, I rise to speak to Amendments 46 and 55 in my name. We are again back to this issue of ensuring that refugees, victims of modern slavery, are not unfairly prosecuted for behaviour committed due to coercion or exploitation. I am very grateful to the Minister for saying that the focus of the Bill is the smugglers. The problem is that there is no stipulation in the Bill that to be guilty, the person must be a trafficker or a smuggler. We want to ensure that refugees, victims of modern slavery, cannot be unfairly prosecuted for behaviour committed in the course of their actions.
Amendment 46 seeks to set out in Clause 14 that those involved in organised immigration crime, rather than those seeking asylum, are the ones who are to be prosecuted, by strengthening the statutory defence, which we have already heard from the Minister concerns finance. I am always open to suggestions on how else you might distinguish between an asylum seeker and a smuggler, in which case one could extend the definition.
The offences this Bill creates are very substantial, and rightly so. We support them. In Clause 14, on handling articles for use in immigration crime, there is a 14-year maximum prison sentence. It is the same for Clause 16, with five years’ imprisonment in Clause 18 and six years’ and five years’ imprisonment in further clauses. These are substantial periods of imprisonment, and these are substantial cases, so it is very important that nothing happens that allows people to slip through the net. Given the severity of those four sentences, it is critical that we take a very careful approach to drafting the new offences, in order to safeguard against any unintended consequences such as the criminalisation of those seeking asylum.
The Bill, of course, as we now know, is widely drafted for prosecution to try to deliberately catch those acting at a distance from, as well as close to, the acts of smuggling. The broad construction of these offences as currently drafted could unintentionally catch vulnerable individuals such as asylum seekers and victims of trafficking. We have already heard the case of the young man who was forced to drive one of these very unsafe boats across the channel and was prosecuted as a result of that.
Lord Dubs (Lab)
My Lords, I am grateful for the opportunity to speak to several of these amendments, tabled by my noble friend Lord Browne of Ladyton, who regrets he is unable to be here today and has asked me to speak to the amendments on his behalf. I agree very much with what the noble Lord, Lord German, just said in relation to the earlier amendment. I am also grateful to the Law Society of Scotland for some of the briefing it has provided, although I should emphasise that the amendment is not confined to Scotland: it is, of course, a UK-wide amendment.
I will take the argument in summary. Speaking to an earlier amendment a few minutes ago, my noble friend said:
“The gangs are the target, not the refugees”.
The point, particularly of Amendment 50 is, in fact, to give effect to saying the gangs are the target and not the refugees. Amendment 50 seeks to make the legislation consistent with the spirit of the refugee convention, ensuring that vulnerable people are not debarred from refugee protection on the basis of criminal acts they have committed in order to claim asylum in the UK.
Clearly, none of us accepts that traffickers have any legitimate basis at all—they are vile people. But some of the people who cross the channel as a result of their efforts—I hope we can stop these traffickers—are, in fact, refugees. If their only offence is to cross the channel by boat, we are making the vulnerable the victims, and that seems not a sensible thing to do. Elsewhere in the Bill, the Government’s approach is to concede the point, and I do not see why it should not apply in this section. If we do not amend the Bill, we will create a Kafkaesque situation in which we would remove protections on the basis of steps taken by refugees in order to seek these protections in the first place. That seems a fairly clear point, and I would have thought the Government would be willing to tidy up the Bill to achieve this particular end.
I will make it clear that the refugee convention has a provision in it about particularly serious crimes, but it is designed to exclude individuals whose record of criminality rendered forfeit their claim to asylum. But that should never apply to those asylum seekers who are forced because there are no safe and legal routes to enter the country by these other means, which we have labelled in previous legislation as illegal.
If we had safe and legal routes—and I do not want to get into a Second Reading debate on this—the whole system would work in a much better way. Furthermore, Amendment 56 is a limited and, I hope, constructive amendment that seeks to remove an inconsistency within Clause 16. This clause creates a defence of collecting information for use in immigration crime, but subsection (6) has a defence for anyone who does it for the purpose of a journey made only by them. The point of Amendment 56 is that if people are traveling in a family group, they will also be able to have that defence. This is a very simple point indeed, and it goes fully in the spirit of what the Minister said earlier. I repeat: gangs are the target, not the refugees.
Baroness Hamwee (LD)
My Lords, we have Amendments 51 and 51B in this group. Amendment 51 would add mobile phones and chargers to the list of relevant articles. The noble Lord, Lord Alton, is just leaving; he may be coming back. There are innocent examples of the use of mobile phones in the JCHR’s report. Mobile phones are very common, and we are looking for proportionality in all this. Some years ago, I quite often heard opponents of asylum seekers and refugees, who were outraged, say, “They even have mobile phones”, as if that was some sort of great luxury and that having them meant they would be perfectly capable of getting, possibly not first-class seats, but certainly seats on a plane, because they were clearly very civilised, well-equipped and moneyed. I have not actually heard that for some time. Mobile phones are not a luxury these days; they enable asylum seekers to keep in touch with their family. I think that is hugely important, not for any sinister reason but because they are a lifeline for mental health, quite apart from more practical examples.
Amendment 51B speaks to the regulations which I mentioned in the last group. The Secretary of State can, by regulations, alter the list of relevant articles, and my amendment would provide for consultation with organisations that aim, without charge, to assist asylum seekers. I think that that point was made by one of those organisations in its briefings to noble Lords. After all, if there is to be a change, it is perfectly reasonable and proper that the people who know what happens on the ground—I am not suggesting that the Government do not—and who have that particular take on it should be consulted.
I have signed Amendment 56, to which the noble Lord, Lord Dubs, has spoken. People travel in groups—not everybody, but some people—and it seems natural, to me anyway, that a husband would perhaps carry documents for his wife and children, or a mother would carry documents for her children. I think that it would be right to make that change.
Lord Cameron of Lochiel (Con)
Once again, I am grateful to noble Lords for their contributions to this group of amendments around the safeguards to the offences. As I have already said on previous groups, it is the position of His Majesty’s Opposition Benches that the new criminal offences in the Bill must be as watertight as possible. We know that people-smuggling criminal gangs are incredibly innovative in their efforts to continue running their illegal operations, concocting ever more ingenious methods to circumvent the law. We must do all we can to frustrate that. To do so, we need to ensure that there are no loopholes that could be used to evade legal repercussions.
I turn to the amendments. Amendment 46, in the name of the noble Lord, Lord German, seems, to us, with respect, to be unnecessary. As the Bill stands, the person in question already has a defence if they are able to show that they were carrying out a rescue, or if
“they were acting on behalf of an organisation which … aims to assist asylum-seekers, and … does not charge for its services”.
In my view, if someone has broken a law, as they will have done if they are charged under this clause, without being able to avail themselves of those two specific defences, then they have committed an offence for which they should be held liable. The amendment proposes that we, in effect, waive the law if the person shows that their actions were self-relating. That is a dangerous precedent to establish—that someone acting to benefit only themselves can get away with actions that are demonstrably illegal. If someone knowingly engages in criminal activity and is unable to have recourse to the defences set out in the Bill, we need to be clear that they have committed a crime and should still be liable as a result. In our view, the amendment would blow wide open the rigour and focus of the offences as currently drafted, which is the opposite of the strong message we need to send to those who—we cannot forget—are illegally violating our borders.
Amendments 50 and 62 would mean that, for the purposes of the UN Convention Relating to the Status of Refugees, any offence committed under the relevant clauses would not be regarded as a particularly serious crime. I listened to the noble Lord, Lord Dubs, explain the rationale for the amendments, and I completely understand the concern that lies behind them. I think I am right in saying that the convention talks about constituting
“a danger to the community of that country”,
and I completely accept that that is very strong language, but I think it is important to consider this in context. Illegal migrants enter the UK without going through any checks whatever. It can be almost impossible to find out who such migrants are, where they have come from, what their history is, and, fundamentally, what sort of people they are. Safe and legal routes are safe and legal precisely because they answer these questions. Let us not forget the incident that happened in May, when five Iranian nationals were arrested for planning what the Home Secretary described as a major terror attack. They arrived in the United Kingdom by irregular means, including small boats and a lorry, before claiming asylum. One of those people was taken out of his taxpayer-funded accommodation when he was arrested. Is it not clear that those men constituted a danger to the community of our country? We need to appreciate the risks that we run when faced with this system and with the problem that we have no idea of who those people are or the potential risk they pose. The police and security services were successful in foiling that attack, but we cannot guarantee that that would happen indefinitely. This problem obviously and demonstrably risks the safety of our national community, and we need to engage with the law in a way that reflects this. For that reason, we oppose those amendments.
Lord Hanson of Flint (Lab)
I am grateful again for the amendments that have been tabled and for the approach of His Majesty’s loyal Opposition in relation to them. Again, I think there will be many areas of agreement between the Opposition and the Government on these issues. I am grateful for the way in which the noble Lord, Lord Cameron, has responded to the debate today.
I reassure noble Lords, particularly my noble friend Lord Dubs, that care has been taken to ensure that these offences have the flexibility to target the smuggling gangs and do not unjustly impact or endanger those who are exploited by them. I have said that in other groups, I may say it again in further groups, and I am saying it again in this group: that is the target for government action.
Amendment 46 seeks to amend Clause 14 to ensure that individuals are not criminalised for handling items relating to their own journey, provided they did so solely for personal use and received no financial gain. I say to the noble Lord, Lord German, that Clause 14 already provides a non-exhaustive list of reasonable excuses; cases can be assessed individually; and prosecutors will consider the public interest as well as specific guidance relating to immigration crimes, including whether there is clear evidence of a credible common-law defence of duress or duress of circumstances, and whether the immigration offence was committed as a necessary part of a refugee’s journey to the United Kingdom. That will all be done before pursuing charges, with the clear intent—going back to my noble friend Lord Dubs—of targeting smugglers and not those who are exploited by them.
There is a list of humanitarian items that are carved out from these provisions. Items outside this list that facilitate organised immigration crime are easily shared, taken or given to others to hold, further risking creating loopholes, as items used in organising immigration crime can easily be transferred or misrepresented as for personal use. That again goes to the very heart of the points mentioned by the noble Lord, Lord Cameron of Lochiel, which is that enforcement would be significantly more difficult if the proposed amendments were accepted. These offences are designed to enable law enforcement to act earlier and faster at the preparatory stages of an offence, potentially saving lives at sea and in the back of lorries. Therefore, I find it difficult to accept the amendment, which would hamper that objective.
Amendments 46 and 55 aim to add a financial gain element to the “reasonable excuse” defence. Again, I respectfully oppose the amendments. These offences target criminal gangs at an early planning stage when financial gain is not necessarily yet evident. Introducing a requirement in the clauses for financial gain would significantly constrain law enforcement’s ability to intervene early and disrupt organised gangs before a crossing occurs and before money changes hands.
Again, there is complexity in cash flows in these criminal cases, and it is impossible and impractical to exempt those without clear financial gain. Doing so would shift undue burden on to law enforcement to prove gain and would undermine effective prosecution. That would not be appropriate or proportionate, particularly given the life-threatening risks we have seen in the channel, where people smuggling is present. It would also undermine the opportunity for early intervention that the offences are designed to facilitate. Where there is evidence of involvement in organised criminal activity, such as facilitating illegal crossings, through the commission of these offences, prosecution should be possible regardless of whether financial gain can be shown.
I turn to Amendment 51, tabled by the noble Baroness, Lady Hamwee. Again, I share common ground with the noble Lord, Lord Cameron of Lochiel, on these matters. Amendment 51 proposes adding phones and chargers to the list of exempt items in Clause 15. Clauses 13 and 14 do not criminalise specific items; they target the supply or handling of items with knowledge or suspicion that they will be used in immigration crime.
The key issue remains intent. Everybody in the Committee today will recognise that phones are commonly used by smuggling gangs to co-ordinate crossings. Law enforcement agencies must retain the ability to act when such items are knowingly supplied for criminal purposes. A blanket exemption would create a significant loophole and weaken our ability to disrupt smuggling operations. Mobile phones are used to organise criminal gangs and therefore it is not practical or feasible to exempt them from the proposals in the Bill.
I am grateful to my noble friend Lord Dubs for speaking to Amendments 50 and 62 tabled by my noble friend Lord Browne. The amendments aim to exclude the offences from being considered a “particularly serious crime” under the 1951 refugee convention. The offences would be considered as particularly serious crimes—this is an important point for my noble friend—only if the sentence reaches the 12-month threshold. A court would have to consider all the circumstances of the offence in detail. If it imposed a sentence of more than 12 months, it is right that that is treated as particularly serious. The individual can still show that they are not a danger to the community.
This year alone—this goes to the heart of all the amendments—there have been 14 deaths at sea. I cannot agree that taking part in and providing means and methods for vulnerable people to risk their lives at sea in increasingly overloaded and poor-quality vessels and in the back of transit lorries should not be considered a serious crime. Amendments 50 and 62 in the name of my noble friend Lord Browne aim to exclude those offences as being considered particularly serious under the 1951 refugee convention.
I reassure my noble friend that there is a minimum sentencing requirement for the offence to be categorised as a particularly serious crime. It is right that this offence be treated as a particularly serious crime if the sentence imposed by the court is of at least 12 months, as I just mentioned, as provided by Section 62 of the Nationality, Asylum and Immigration Act 2002. The court will be able to consider carefully whether the offence is appropriate when imposing such a sentence. Also, it is still open to an individual to demonstrate that they did not constitute a danger to the community for the purposes of Article 33(2), thereby retaining protection against the matter being brought before them.
Amendment 56 proposes a statutory defence for those researching a journey for a close family member. Proving close family relationships is very complex and, I contend, is handled best on a case-by-case basis. Clause 16 already includes a non-exhaustive list of reasonable excuses, and each case is assessed individually. Prosecutors—this is key and we have discussed it in earlier groups—will consider the public interest before pursuing charges, with the clear intent of targeting smugglers, not those exploited by them. This is a common theme running through all my responses to the groups of amendments to date—the aim of the UK Government, in co-operation now with authorities from other nations, is to target the smugglers, not those exploited by them.
Amendment 51B would require the Secretary of State to consult organisations assisting asylum seekers before making additions to the list of carved-out articles under this legislation. I know that this is a well-meaning and well-intentioned proposal, but it is not necessary or appropriate in the context of this clause. The articles for use in immigration crime offences concern the prevention of immigration crime and provide the opportunity to act quickly before lives are lost at sea and in the back of refrigerated lorries.
Clause 15 provides a mechanism for the Secretary of State to designate certain items as carved out from this offence and the option for the Secretary of State to add to this list, but not to remove them without going through full parliamentary process. If we had formal consultation with external organisations before decisions could be made to add an item to the carve-out, that could introduce additional bureaucracy that would delay urgent action.
As noble Lords will know, immigration crime is dynamic and moving. We have seen this weekend how that dynamic movement can take place. The methods used by those who seek to exploit vulnerable individuals are evolving rapidly and the Government must retain the ability and flexibility to respond swiftly and decisively. I assure the Committee that there will be circumstances where, timing and circumstances permitting, we will always want to engage with charitable and voluntary organisations on these changes as appropriate. However, where lives are at stake and time is of the essence, I want to ensure that the objective of saving lives is paramount.
I hope I have answered the points raised by the Committee. I look forward to the noble Lord’s response but hope he will withdraw his amendment, and that noble Lords will reflect on what has been said.
Lord German (LD)
I thank the Minister. I understand the ambition he is setting out: that we are going for the smugglers, not the refugees. The problem is that the Bill, as we have been discussing, does not give us that definition clearly up front. In other words, what the Minister has been saying and his intention—I absolutely agree with him—need to be clearly somewhere or other in the Bill.
I must say to the noble Lord, Lord Cameron, that he read out the first part of my amendment and then skipped over the second part, which is connected.
Baroness May of Maidenhead
“(c) they were acting under the duress of slavery.”Member’s explanatory statement
The amendment seeks to make provision that under the duress of slavery a person has a reasonable excuse for the purposes of subsection 3 in carrying an article.
Baroness May of Maidenhead (Con)
My Lords, as I rise, I draw your Lordships’ attention to the fact that I both set up and chair the Global Commission on Modern Slavery & Human Trafficking. I wish to move Amendment 47 standing in my name, and in my remarks I would also like to address Amendment 49.
As I have been listening to the debate that has taken place so far, I have to say that I think there is absolute agreement across the Committee that we want to smash the gangs and deal with the criminals who are making money out of other people’s hopes and misery. The Minister has made that very clear, and others speaking from across the Committee have supported that intention.
I also noted the remarks that were made by the noble Lord, Lord German, in moving Amendment 46, in relation to the issue of modern slavery. It is on that issue that I have specifically put down Amendment 47. My concern is that in the attempt to smash the gangs, the Government may inadvertently catch up within the requirements of this Bill those who are acting not in order to make money or simply for themselves but because they have been forced to do so by their traffickers or slave drivers. They are acting under the duress of modern slavery. That is why Amendment 47 would add to Clause 14(4) proposed new paragraph (c) so that one of the reasonable excuses that somebody has for an offence under this clause is that they were acting under the duress of slavery.
If I may just say so to your Lordships, it is very easy in today’s world to think that when we are dealing with aspects of border security and immigration crime, we are thinking only about small boats. That is where the focus is, and there are some elements of this Bill that are specifically related to people coming across the water from France, Belgium or Holland. But, in fact, immigration crime can be committed in a number of different ways. People can be brought across the border in a number of different ways. It may very well be that somebody who is being brought under duress of slavery, who is being trafficked into sexual exploitation, for example, may in effect be committing an immigration crime. I believe that they should have the ability to use the fact that it was under duress of slavery as a reasonable excuse for a defence.
The Minister may say to me that Sections 24 and 25 of the Immigration Act 1971 talk about somebody knowingly having a document or whatever that they know is in breach of immigration law, and I would be interested if he used that as his defence for not specifying—no, the Minister is shaking his head. If we are all agreed that people who have been enslaved should not be caught up by this Bill and be charged with these offences, then I urge the Minister to accept that that needs to be specified on the face of the Bill. He has just, in response to the noble Lord, Lord German, indicated, more or less, that he does not intend to cover those people who are under duress of slavery. I say that it would be far preferable if we made that absolutely clear on the face of this Bill.
Amendment 49 is of a slightly different order because it refers to the holding of items that have been picked up as a result of action under Clause 14. It is just to make sure that where a relevant article is held by the authorities, they ensure that they maintain it and protect it, so that if the individual from whom it has been taken wishes to use that relevant article as part of their case to the national referral mechanism to be considered to be subject to modern slavery, that item is protected.
It is of course normal practice—as I discussed the other day with my noble friend Lord Davies of Gower, who has a police background—that police keep evidence and should protect that evidence, but I think we should be absolutely clear that such articles should be capable of being protected, and should be protected, by the authorities, so that the person who may be under duress of slavery can, if necessary, rely on that item in the case that they provide to the national referral mechanism. This is about the protection of those who are being enslaved. Fifty million people around the world are in slavery of various forms. We want to ensure that we do not aid those who wish to bring people across this border into slavery. I urge the Government to specify the under duress of slavery issue on the face of this Bill. I beg to move the amendment.
Baroness Butler-Sloss (CB)
My Lords, I have put my name to these two amendments, and I declare that I am co-chair of the All-Party Parliamentary Group on Human Trafficking and Modern Slavery and vice-chair of the Human Trafficking Foundation. I agree with every word that the noble Baroness, Lady May, said. We need to remember that in these two amendments we are talking about not people traffickers but human traffickers, those who are bringing people from other countries to this country to be enslaved. As the noble Baroness said, many millions of people across the world—men, women and children, including babies—are in that very sad situation.
The idea of this amendment is to recognise that the Modern Slavery Act 2015, brought into Parliament by the noble Baroness, Lady May, does not specifically deal with this. It provides a partial defence under Section 45 for those who are genuine victims of modern slavery, but that does not deal with Clause 14 of the Bill.
Whatever the Minister may have thought, I would ask him to rethink whether in this modern time, when that relatively small number of people coming through either on boats or in lorries or in any other way who are pushed into this country by those who are exploiting them, it is not crucial that it is clear to anyone dealing with them that, if there is a possibility that the person may have been exploited or is coming into this country to be exploited, then the articles that they have need to be looked at in a completely different way. Indeed, under Amendment 49, the articles need specifically to be retained as potentially of value for the first part of the national referral mechanism when the person is going through that rather prolonged process. I strongly support the two amendments in the name of the noble Baroness, Lady May.
Lord Alton of Liverpool (CB)
My Lords, I too am a signatory to Amendment 49. It is a great pleasure to support both amendments in the name of the noble Baroness, Lady May. In parenthesis, I should say that, in 2015, along with my noble and learned friend Lady Butler-Sloss, it was a great pleasure to support what was then ground-breaking legislation. It was a classic, textbook example of how to make good law: first, we had robust pre-legislative scrutiny; the noble Baroness, in her role as the Home Secretary of the day, along with Dame Karen Bradley, was magnificent in steering the legislation through; and we had bicameral agreement across both Houses, with amendments being made and accepted as the Bill went through both Houses.
I might add that the Joint Committee on Human Rights is currently conducting a new inquiry—the Minister will be pleased to hear—into supply chain transparency and modern-day slavery, and the noble Baroness, Lady May, has been extraordinarily generous with her time and in making a wonderful written submission to the committee. I know that this will be taken into account when we come to write our report and its recommendations; 2015 is a decade ago and, as the noble Baroness has recognised, issues like Section 54 need to be looked at again. The way we use the Proceeds of Crime Act needs to be looked at in relation to modern-day slavery and human trafficking. It is another living document, something that, from time to time, we have to go back to. I believe that the whole House would want to pay tribute to the noble Baroness for the commitment that she has given to people who are victims of modern-day slavery.
I referred to Dame Karen Bradley. For some time, I was a trustee of the Arise Foundation charity; I see that my noble friend Lord Hogan-Howe, who was also a trustee of Arise, is here. We became intimately involved in some of the personal cases that were raised by victims of modern slavery. With the noble Lord, Lord German, at an event that he kindly hosted a couple of weeks ago for Kalayaan—another wonderful charity that works with victims of modern slavery—we heard some heart-rending cases of people who had been trafficked but who had come through the national referral mechanism. It would be helpful for later stages of the Bill if the Minister were able to give us some updated information about the numbers of people who are in the national referral mechanism at present, and the average time that people spend in the NRM. At the event in the Attlee Room, hosted by the noble Lord, Lord German, we heard, for instance, from one woman who had been four years in the national referral mechanism.
There is always work to be done, but the noble Baroness’s amendments, especially Amendment 49, are incredibly important. People who go into the NRM have to prove their justification and right to be able to stay in the United Kingdom. If they do not have access to the evidence—if it has been taken away —then it will be impossible for them to prove their case; it will undermine the victim seeking determination by the NRM.
At pages 21 and 22 of the Joint Committee on Human Rights report, which I referred to at some length earlier today, the committee warns of the danger of breaching the European Convention on Action Against Trafficking in Human Beings, and points to our obligations to victims of modern slavery and human trafficking. We should never forget that victims of modern slavery and human trafficking did not come here willingly and were not migrants; they are victims of a heinous crime. The noble Baroness is right to remind us of the distinctions that we should make.
On 16 April, the Minister replied to my Written Question HL6468, asking for the Government’s response to the manifesto entitled Putting Victims First: Renewing the UK Commitment to Victims of Trafficking and Modern Slavery, which was published in July last year by a coalition of modern slavery organisations. In his helpful Answer, the Minister said:
“The Government continues to engage with the coalition … keeping all aspects of asylum and immigration systems under regular review including in relation to trafficking and modern slavery”.
I would be grateful if the Minister could say whether they have discussed with the coalition the protection of belongings of people likely to have been trafficked and, if so, what response they received. If not, I hope that they will do so between now and Report. I hope that the Government, and the Minister, will accept the excellent amendments from the noble Baroness, Lady May.
Baroness Hamwee (LD)
My Lords, we on these Benches support the noble Baroness, who is part of the eminent quartet that has signed the amendment. I had been wondering—but it was one of those thoughts that got away—about somehow trying to get the word “voluntarily” into the Bill in respect of actions taken by people that could be offences, and the first of these amendments certainly reflects a part of that.
As regards Amendment 49, I am sure that, through the briefings that we have received, there has been mention of phones—I will not try to inflame the Minister—which have not been returned by the authorities. They have been held so as to extract information, and they have somehow got lost in what I can understand must sometimes be a pretty chaotic situation. That is not relevant just for the offence but can be a hindrance to the NRM process.
As the noble Baroness was speaking, something occurred to me that may or may not be relevant, but I will just float it. When, some years ago, we were debating young women who were vulnerable to being pushed into forced marriages, they were advised to hide about their person, if they could, something that would be picked up at the border, while they were going through security, which would enable them to talk to the border officials. I simply do not know, but could people who are trafficked try that same sort of trick or device to attract attention when they would be among people who do want attention at the border? I throw that in as a thought. I do not know whether it would be covered by
“acting under the duress of slavery”,
but I express it anyway since it has come into my mind.
Lord Sentamu (CB)
My Lords, first of all, I want to congratulate the noble Baroness, Lady May, for getting legislation about modern slavery on to the statute books. I want to say thank you very much, because we have people—some from my own country—coming here under that very disheartening reality. The second thing I want to mention is what the noble Baroness did with the Hillsborough inquiry. She resolved a lot of pain for a lot of people in Liverpool, so I wanted to say thank you for that.
The question I want to ask is this. Under Amendment 47, the line of defence would be that they were
“acting under the duress of slavery”.
What about a member of one of these criminal gangs that are bringing people over? They could easily say as their defence, “I was under duress when I did what I have done”. What would be the response to such a line of defence?
Lord Davies of Gower (Con)
My Lords, the amendments in this group, tabled by my noble friend Lady May, raise some interesting questions that I hope the Government will be able to address.
Modern slavery is of course an extremely serious issue. As the recent report from the Global Commission on Modern Slavery and Human Trafficking—which is most ably chaired by my noble friend—made clear, the effect that this brutal trade can have on the people involved is truly harrowing. It is right that the Government take this opportunity to outline how they will incorporate protections for those who are acting under duress of slavery into the immigration system. I welcome my noble friend’s amendment in so far as it provides the Government with an opportunity to address this important issue.
However, I want to raise a cautious concern about one particular aspect of the amendment, which is that the protection would apply only once someone’s status as having acted under the duress of slavery had been established. I understand that determining this status would involve going through the national referral mechanism, which, as noble Lords across the Committee will be well aware, faces severe backlogs. Not only that but, as the UN themselves has highlighted, far fewer foreign applicants under the NRM actually have a decision made in their favour, suggesting that immigrants are increasingly applying to the NRM on the basis that this will delay any decision to remove them, rather than because they have genuine grounds for a claim. That raises the question of whether the amendment would risk creating another loophole and another incentive for those crossing in small boats to delay any decision on their application in the full knowledge that the NRM mechanism already is severely delayed and backlogged.
It is the duty of the Government to seek to protect those who are under duress of slavery. As I have said, the amendment might risk creating a considerable loophole that could be easily exploited by bad actors. That is not to say that I do not support the intent behind the amendment, but I will be paying close attention to what the Minister has to say on this point.
On Amendment 49, we agree that this is an important provision and that it makes complete sense to be assured that articles will be both protected and kept in a condition that will allow them to be used and referred to in any future case. As my noble friend has already alluded to, my understanding is that the Police and Criminal Evidence Act powers will already cover this, and that if any seized articles were lost or damaged then that would perhaps be a disciplinary matter for the officer involved. We therefore question whether a protection in the Bill in the form of this amendment is necessary, but the point that my noble friend raises is an important one. We will join her in seeking strong assurances from the Minister that these articles will be protected and kept in a condition that will allow them to be used in the future.
Lord Hanson of Flint (Lab)
I am grateful to the noble Baroness, Lady May of Maidenhead, for tabling these amendments and instigating this discussion. I am grateful for the efforts that she took as Home Secretary, all those years ago, to establish the first Modern Slavery Act, following the very good process that the noble Lord, Lord Alton of Liverpool, mentioned. As I recall, having been the shadow at the time, that process had Frank Field, among others, chairing cross-party pre-legislative scrutiny efforts, which led to the legislation—the Act whose implementation my right honourable friend the current Home Secretary and I, as Members of Parliament, shadowed at the time.
It is one thing to pass an Act—we have all done that many times in this House and other Houses—but it is quite another to retain what I sense is a lifelong interest and passion for the issue. I say to the noble Baroness, 10 years on, that it is a tribute to her commitment at the time that she continues to do that. I also pay tribute to the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Randall, in his absence, and the noble Lord, Lord Alton. All four have now formed a sort of coalition—I think we will call them the quartet after the earlier intervention by colleagues—that is taking a real interest in the development of this issue. I was pleased to address, on behalf of the Government, a reception in the House of Lords a couple of weeks ago at which the noble Baroness, Lady May, appeared virtually to look at the next stages of tackling this issue.
Having said all that, I hope I can reassure the noble Baroness that the amendments she has tabled today are covered by existing legislation. I am willing to be tested on that, but I hope I can give her that reassurance. She raised these issues at Second Reading and I hoped I had given her such reassurances then.
Amendment 47 seeks to provide a reasonable excuse for articles for use in immigration crime for those who are acting under duress of slavery, a point made by the noble and learned Baroness, Lady Butler-Sloss, and the noble and right reverend Lord, Lord Sentamu. I put it to the noble Baroness and the other noble Lords that the protections she is seeking are covered by Section 45 of the very Modern Slavery Act 2015 that was legislated for at that time. Going back to the point mentioned by the noble and right reverend Lord, Lord Sentamu, Section 45 provides a statutory defence against prosecution where an individual was compelled to commit an offence as a result of their exploitation. That is very clear in the Modern Slavery Act, which—this is my view and that of my legal advisers in the Home Office, and I hope it has been echoed again today—can be interpreted to mean that, in the event of trafficking from modern slavery, all of the provisions of the Bill can be dealt with by that statutory defence. We can debate that, but I hope it will eventually satisfy the noble Baroness’s noble intention in bringing forward the amendment today.
Baroness Butler-Sloss (CB)
The trouble with the Modern Slavery Act 2015 is that it is 10 years old, and some of it is not as well regarded as it might be. I recently attended an interesting discussion with the Minister in the other place, Jess Phillips, about updating the Modern Slavery Act so that people recognise that it is actually effective.
The Minister will know that the Government are putting into the Crime and Policing Bill a child exploitation clause. Technically, that is covered in the Modern Slavery Act, but they are putting that provision in there because the Act is not being properly regarded. This issue is something else that is not being properly regarded. Although technically it is in Section 45, to which I referred earlier, I am sure the Minister knows that Section 45 is not used in the courts as often as it ought to be, and that is a very practical reason for putting it into the Bill. If the Minister’s Government are prepared to put child exploitation into the Crime and Policing Bill, why can they not put another similar matter into this one?
Lord Hanson of Flint (Lab)
The noble and learned Baroness makes an important point. I know that she, along with the noble Lord, Lord Randall, and my noble friend Lady O’Grady, met Jess Phillips last week. I hoped to join that meeting but parliamentary demands meant that I had to answer on an issue in this House, which meant I could not attend. I know that the committee of this House that produced the modern slavery report has raised a number of suggestions for updating and improving the Modern Slavery Act. My honourable friend Jess Phillips, who has direct responsibility for this issue in her position in the House of Commons as a Minister in the Home Office, is examining all the issues that were brought forward and wishes to make some improvements. The points in the Crime and Policing Bill, which will come before this House at some point, extend aspects of the modern slavery legislation regarding child exploitation.
Again, I give the noble and learned Baroness the reassurance that the assessment of our legal teams, and my assessment with Jess, as the Minister, and with other Ministers dealing with the Bill from all aspects of Parliament, concludes that the protections sought are covered by Section 45 of the Modern Slavery Act 2015. We can test that and we can reflect on it outside the Chamber, and the noble and learned Baroness and others can put points to us in response to what I have said, but that is the judgment that we have made.
Lord Alton of Liverpool (CB)
Before the noble Lord sits down, he will remember that I asked him some questions about the national referral mechanism. I do not expect an answer now, but will he agree to write to me about that?
Lord Hanson of Flint (Lab)
I was just coming to the noble Lord’s question in my denouement. As I was saying to the noble Baroness, I hope she can reflect on the assurances I have given and withdraw her amendment. If she is not happy, she can return to these issues, but I hope she will reflect upon them. I say to the noble Lord, Lord Alton of Liverpool, that I do not have the figures he requested to hand. I can undoubtedly find a person who does have them and get them to him in short order. I will do it before we finish Committee.
With that, I hope the noble Baroness, Lady May, will withdraw her amendment.
Baroness May of Maidenhead (Con)
My Lords, I express my gratitude to the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Alton, and, in his absence, to my noble friend Lord Randall of Uxbridge, not just for supporting these amendments but for the many years of commitment they have given to tackling modern slavery and supporting the victims and survivors of modern slavery.
I am also particularly grateful to the noble and learned Baroness, Lady Butler-Sloss, for bringing her legal mind to bear to the interpretation and use of Section 45 of the Modern Slavery Act 2015. The Minister was very kind in saying that that Act stood the test of time rather better than some think. It has in large measure stood the test of time, but there are aspects of it, certainly around prosecutions, that are perhaps not being used as well as they might be. Supply chains are also an area we need action on.
Lord Hanson of Flint (Lab)
I remember moving amendments on supply chains during the passage of the original Bill; I think we had a friendly discussion on those at the time.
Baroness May of Maidenhead (Con)
I am very conscious that the supply chain issue has been around for some time. I put it to the Minister that, at the time, what was put into the Act was going to receive sufficient support across government to enable us to have something on supply chains in the Act. If he reads the report of the Global Commission on Modern Slavery and Human Trafficking, he will see that we are urging mandating action on supply chains, which he may be pleased to support.
I would like to address a number the of points raised by noble Lords. The noble Baroness, Lady Hamwee, asked about somebody being trafficked across the border having some sort of sign that enables them to start a conversation. One of the challenges is that, very often, people do not realise they are being trafficked into exploitation. They believe they are being brought across to a good job, and then they find they are in exploitation when they get here. They are unlikely to do that or want to do that.
My noble friend Lord Davies of Gower mentioned the speed of the NRM. That is indeed an issue. I know the Government have put some extra resources into it, but it is a deep concern that a process that was originally intended when introduced to last 45 days can now take 300 to 500 days, which is the period normally quoted, although I think somebody referred earlier to someone being in the NRM for four years. We need to get that down because people deserve to have decisions rather quicker than that. I recognise that that is an issue.
The Minister spoke about what was being held. He referred to documents but, again, we must realise that this is not just about small boats. There are a number of ways people will be trafficked illegally into this country and into exploitation and slavery. My attempt is to cover all these aspects.
I am grateful to the noble and right reverend Lord, Lord Sentamu, for his kind remarks. There are issues around this question, and we are balancing the need and desire to do something for the victims of slavery against avoiding encouraging others. Of course, through the NRM there is a process for assessing if someone genuinely has been enslaved and trafficked into exploitation. That should, if the process works well, weed out criminal gang members who claim such modern slavery. That addresses the loophole point that my noble friend Lord Davies of Gower raised.
It is very tempting to say, as has been said to me by some colleagues, that all of this just creates loopholes. But I say to noble Lords that if we are genuinely concerned that slavery exists in our world today, in 2025, and that people are being brought into our country into slavery—that they are being trafficked by criminal gangs which make money out of their expectations, hopes and misery when they face exploitation and slavery—and if we feel that that is wrong, we should do something about it. We draw our legislation up carefully so that we do our best not to create loopholes. But we cannot simply say that we abandon those in slavery, or those who are being exploited, because we are worried about a loophole.
Having said that, I heard what the Minister said about other pieces of legislation. I will go away and reflect on those, and I beg leave to withdraw my amendment.
Heathrow Substation Outage: NESO Review
Lord in Waiting/Government Whip (Lord Wilson of Sedgefield) (Lab)
My Lords, I will now repeat a Statement made in another place. The Statement is as follows:
“With permission, I would like to make a Statement on the publication of the report from the National Energy System Operator following its review into the fire at the North Hyde substation on 20 March. NESO’s review was commissioned jointly by the Energy Secretary and Ofgem in the immediate aftermath of the fire, which disrupted power supply to over 70,000 customers, including, of course, Heathrow Airport, which closed operations on 21 March. While power from the grid was restored quickly to customers, there were significant secondary impacts to the aviation sector due to the associated closure of Heathrow Airport.
My right honourable friend the Secretary of State for Transport made a Statement to the House at the time, where she committed that the Government would update the House as soon as the relevant investigations had concluded. That is why I am making this Statement before the House on the day that NESO’s report has been published.
Before I update the House on the key findings of the review, I reassure honourable Members that the Government are taking action in response to the report. We will urgently consider the findings of the review and have committed to publish a government response that will set out a plan on how the issues identified will be addressed in order to improve our energy resilience.
Having reviewed the report, I am deeply concerned —I am sure honourable Members will agree—that known risks were not addressed by National Grid Electricity Transmission, a key operator of our electricity system. NGET’s own guidance is clear, and based on the elevated moisture samples that NGET took in 2018, the asset should have remained out of service until mitigating actions were put in place, or the asset should have been carefully monitored until it could be replaced. NGET failed to take action appropriate to the severity of the risk at North Hyde. That was most likely the cause of the catastrophic fire on 20 March.
I spoke to NGET this morning and made it clear that the findings are unacceptable and that action must be taken to ensure that maintenance work on critical assets is prioritised appropriately. Fire suppression systems must not be left inoperable.
I am pleased to see that the regulator is taking swift action in response to the findings, announcing today that it is opening an official enforcement investigation into NGET. Ofgem will consider any possible licence condition breaches relating to the development and maintenance of National Grid Electricity Transmission’s electricity system at North Hyde. I spoke with Ofgem yesterday to express my support for that investigation and the planned audit of National Grid’s critical substation assets. That will be essential to understanding any other potential risks on the network and ensuring that those are being mitigated appropriately.
The report also highlights that North Hyde substation, which was built in 1968, is subject to different design standards from newer sites that were built during the 1990s. There was not sufficient distance or a physical barrier between two transformers at North Hyde, which allowed the fire to spread. It is essential that we consider the potential risk created by differing design and standards across the electricity network, particularly as we move towards clean power 2030. That will be a key focus of the Government’s response.
My department and Ofgem will hold NGET to account for its role in the incident at North Hyde, but the extent of the impact of the incident on Heathrow operations must also come into focus. Heathrow Airport Ltd commissioned its own independent review, the Kelly review, which was published on 28 May and investigated the circumstances that led to the airport ceasing operations for most of 21 March. The review highlighted several recommendations to further improve the resilience of the airport’s internal electricity network. Those align with NESO’s findings that there are options to improve Heathrow’s own power resilience, which is the responsibility of Heathrow and not National Grid, and reduce the risk of further disruption at this scale.
Heathrow benefits from three separate supply points to the electricity network. It is rare for any site to have such a resilient connection to the network. As no energy system can ever be free from disruption, this is an opportunity for Heathrow to consider investing in its internal electrical distribution network to take advantage of those multiple supply points. I welcome the continued effective collaboration between Heathrow and energy operators as part of the review. My department and the Department for Transport will work to ensure that that collaboration continues across those critical sectors.
Although such incidents are rare and the UK has a robust and resilient system, there are always wider lessons to be learned. The majority of recommendations made by NESO in its report suggest potential improvements that could be considered by operators across the energy sector. In collaboration with NESO, Ofgem and other industry partners, my department will ensure the delivery and implementation of those energy recommendations. However, the report findings are also applicable to wider government policy on resilience, both in the energy sector and across other critical national infrastructure sectors.
Ensuring the protection and resilience of critical national infrastructure continues to be a key priority for government, with action already being taken. The Government’s recently published 10-year infra- structure strategy committed to strengthening resilience standards across critical national infrastructure. Further, the Cabinet Office will imminently publish the UK Government’s resilience action plan, which will articulate the Government’s new strategic approach to resilience and is the outcome of the resilience review announced by the Chancellor of the Duchy of Lancaster in this place last year.
My department is already taking steps to enhance our current approach to the designation of critical national infrastructure in the energy sector. We recently introduced specific licence conditions that give NESO responsibility for data gathering and technical analysis to independently inform the Government’s decisions on the designation of CNI, ensuring our most critical infrastructure in the energy sector is always as resilient as possible. We will work with the Cabinet Office and wider government to develop a full response to the North Hyde report and set out how we will tackle some of the cross-sector resilience challenges highlighted, particularly given the importance of the energy sector for the continued operation of so much of our critical national infrastructure.
I want to restate that Great Britain continues to have a resilient energy network. Even though incidents such as this are rare, it is essential that we learn the lessons to maintain and, where possible, improve our resilience. The government response will set out our plans for how we will continue to do so.
I thank NESO for carrying out such a comprehensive review over the past three months. The report shows the value of learning from past emergencies such as this. NESO’s newly established functions in energy resilience will enable government, the energy industry and the regulator to truly understand whole energy system risks and mitigations, proactively ensuring that Great Britain continues to have a reliable energy supply, which is critical to the whole of society. I commend this Statement to the House”.
The Earl of Courtown (Con)
My Lords, I thank the Minister for repeating the Statement. I also thank NESO for its swift and diligent work. The findings of the report are deeply concerning. It is clear, as the Minister said, that National Grid failed to address a known issue for over seven years—a failure that is simply inexcusable.
The central lesson from the Heathrow blackout is the vital role that critical national infrastructure plays in ensuring both our energy security and our national security. Shortly after the incident at Heathrow, events in Spain and Portugal served as a stark warning of what can happen when energy systems are left vulnerable. Public transport was brought to a standstill, payment systems collapsed, and millions were left unable to cook, travel or contact their loved ones.
In the case of North Hyde, the blackout disrupted schools, the London Underground and Hillingdon Hospital, and affected nearly 70,000 customers, some of whom were forced to leave their homes. That is the very real cost of neglecting our energy resilience. Let us be clear: this Government are jeopardising our energy security. We are deeply fortunate to be a country surrounded by our own gas fields, yet instead of using these domestic resources, the Government have chosen to rely on imports, including gas imported from the very same North Sea fields that they are barring Britain from accessing. We are seeing gas wells filled with concrete, contingency options dismissed and our energy independence systematically dismantled. In the light of growing geopolitical instability, what steps will the Government take to strengthen the resilience of our energy infrastructure?
What assessment has been made of how our current energy targets increase our reliance on Chinese imports? Just last year, our intelligence services warned of Chinese state-backed cyber operations aimed at disrupting critical infrastructure in the event of conflict. At the same time, the Government are racing to tie our energy future to Chinese technology, from solar panels and rare earths to batteries. We have already witnessed China restrict the export of key minerals in its trade dispute with the United States. We have seen reports of kill switches in Chinese-manufactured inverters, and US intelligence has flagged the potential presence of surveillance devices in Chinese wind turbines. Why are we, in effect, handing over the keys to our energy future to the Chinese?
I turn to the findings of the report. Will the Minister confirm who at National Grid made the decision to delay critical maintenance on the transformer in 2022 and how they will be held accountable? What are the penalties for breaching licence conditions, and what enforcement mechanisms will be used? The report, as the Minister said, reveals that the North Hyde site failed to meet modern standards for physical barriers between transformers. Can the Minister confirm whether the Government have instructed National Grid to review all substations with older transformers that predate current safety requirements?
Finally, with global tensions rising and the risk to infrastructure increasing, what are the Government doing to ensure the long-term resilience of our energy system? We want a clean energy future, one powered by nuclear, small modular reactors and the next wave of British innovation, but above all we need energy that is secure, affordable and reliable. This Government are making us increasingly dependent on foreign imports, all the while turning their back on British resources. I urge the Minister to return to this House with a clear plan for safeguarding the resilience and sovereignty of the UK’s energy supply.
Earl Russell (LD)
My Lords, we are very grateful to NESO for the final report on this catastrophic power failure that shut down Heathrow, and we note the deeply concerning findings. A single point of failure detected years ago should not have been able to shut down our largest airport. This was a major incident. Heathrow closed for 16 hours; 1,300 flights were cancelled, impacting 270,000 passengers; and 70,000 domestic users had their energy cut. This presents a valuable learning opportunity, so I thank the Government for the terms of reference and NESO for its excellent and comprehensive report. The quality of the work here shows just how well NESO is establishing itself as a new organisation and how it is adding value.
To summarise, the report found critical maintenance not done for seven years; older transformers in situ not compliant with modern regulations, allowing the fire to spread; any number of possible further unknown maintenance issues; and possible National Grid licence breaches. Heathrow has three independent feeds from the grid but has configured its internal network in such a way that losing just one feed closed the airport. National Grid, in turn, was not aware of Heathrow’s vulnerability and that it was critical national infrastructure. Broken systems and poor communications between organisations come on top of years of underinvestment, both in our grid infrastructure and in our critical national resilience more generally.
These findings are particularly concerning as they come just before the massive period of transition, as we are about to invest over £70 billion before 2030 in achieving clean power. We also face increasing impacts from climate change itself and increasing external threats, from cyberattacks to attacks on our undersea cables, further impacting our national resilience. The report reveals a catalogue of serious failings, the most damaging of which was a catastrophic failure to recognise the imminent fault in the transformer in 2018, the failure to take appropriate action, and further mis-maintenance in 2022. This led directly to the fire. The substation, built in 1968, would have worked well had it been maintained, but it was not positioned in a way that met with modern design standards, which meant that once the fire started, it spread.
The Minister in the other place said that National Grid would look at maintenance backlogs and that he hoped to get an update by the end of last week, so I ask the Minister: are the Government clearer on the scale of any further maintenance backlogs that exist? Heathrow understood its power supply vulnerability yet deemed it low-risk and decided not to do anything about it. What is the Government’s position on this continuing vulnerability at Heathrow Airport? The Minister talked about an opportunity for Heathrow to fix its systems, but surely the Government need to go further before we expand Heathrow, and make sure that Heathrow’s power systems are fit for purpose.
Alarmingly, the energy system operators, including National Grid, were not aware that Heathrow was critical national infrastructure and did not understand the impacts of the interruption to one of its power supply points. This lack of joined-up thinking and awareness across critical sectors is a grave concern, so I hope that the Government will ensure that energy network operators are fully aware of all the critical national infrastructure customers that they have and the impacts of potential supply operations. Will a mandatory cross-sector communication and operation protocol be established to help resolve these problems? The critical national infrastructure people and the power supply people need to be talking to each other. That this really has to be resolved is one of the key things to come out of this.
Further, what concrete steps will the Government take to mandate a comprehensive review of all the substations to make sure that they fit modern design standards and are sited appropriately? I know the Minister is in conversations with National Grid and with Ofgem. I welcome the commitments in the Statement before us today, but when do the Government expect the Ofgem report to be published, and how will the Minister and the Government further update this House once that has been completed? If further National Grid failures come to light, how will those be resolved, and how will National Grid be held to account if further backlogs of maintenance come to light?
I welcome the inclusion of transformers. I note that there is a 12- to 24-month wait for these things. They are crucial to our transition to net zero, so I welcome that that was done. I call on the Government to do more to update Parliament on the transition to net zero and to produce an annual report on our energy resilience and our transition to net zero.
Finally, this is a valuable learning opportunity, but for the Government to learn, this report needs to not sit on a shelf. We have had other reports about energy resilience, and we have had Mighty Oak, so can the Minister reassure me about the actions the Government will take to ensure that lessons are learned and actions are taken, across the sectors, to improve communication and improve our resilience? We all know that if this stuff goes wrong, the lights go out for everybody and that causes problems, so we do need to act on these things, but I thank the Minister for repeating the Statement.
Lord Wilson of Sedgefield (Lab)
I thank noble Lords for their questions and comments. We have never had a blackout in this country in the lifetime of the national grid. We are very proud of the resilience of the grid. We had this incident at Heathrow, but the number of problems like that is very small, and we are going to learn from those mistakes.
The noble Earl asked whether anybody will be punished for this. It is the responsibility of Ofgem, the independent energy regulator, to determine whether the national grid was in breach of any of its licence conditions and to take appropriate action. Based on NESO’s findings, Ofgem is opening an official enforcement investigation into the grid to consider any possible licence breaches relating to the development and maintenance of the electricity system at North Hyde. We are on to that and will report back once we know where we are.
I do not have the figures on the maintenance backlog, but I will write to the noble Earl with whatever information we have. There will be an audit of the other substations as part of this review, especially those that date back to 1968, to see whether they are still suitable for the task they have to do.
There were questions about long-term resilience. I mentioned that a resilience statement on critical infra-structure was made today. We take this very seriously. I think this country is a world leader in delivering the development of the critical national infrastructure knowledge base and the UK Government have a world-leading tool that creates an interactive map of all CNI in the UK. This helps the UK Government understand vulnerabilities over the 13 CNI sectors, which include energy, water, nuclear, the chemical industry, et cetera. We are taking this very seriously, not just as a Government but across the nations and across every department. We need to get this right. Whenever anything like what happened at Heathrow happens, we need to learn from it.
There were a couple of general points about net zero, energy security and China. On China, I understand the noble Earl’s comments, but foreign involvement in critical national infrastructure undergoes the highest levels of scrutiny. My department works across government to monitor and guard against any potential security risks in the energy sector and its supply chain. The integrated review refresh talked about having a positive trading relationship between the UK and China and we continue to recognise the importance of trade and investment with China. We are investing £300 million into the supply chain on solar panels, which the noble Earl mentioned, and the turbines we use in this country are manufactured in the West, not in China.
As a general point on energy security, I would have thought that the best way to achieve it is surely to have home-grown energy. That is why it is important that we go ahead and achieve net zero and try to achieve clean energy by 2030, to make sure that we are not reliant on international markets and fluctuating oil and gas prices but can rely on something home-grown that we know will be there for the country.
Border Security, Asylum and Immigration Bill
Tuesday 8th July 2025
(1 day, 17 hours ago)
Lords ChamberBorder Security, Asylum and Immigration Bill 2024-26 View all Border Security, Asylum and Immigration Bill 2024-26 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 101-II(b) Amendments for Committee (Supplementary to the Second Marshalled List) - (8 Jul 2025)
Baroness Hamwee
Member's explanatory statement
This amendment is intended to probe whether provision of humanitarian support constitutes a “reasonable excuse” as a defence to the offence in this clause.
Baroness Hamwee (LD)
In moving this amendment, I will speak also to Amendment 60. This clause, again, is about collecting information and reasonable excuses.
Clause 16(8) provides a non-exhaustive list of reasonable excuses. Our amendment is probing. We would like to see as many good reasons as are likely—I emphasise good reasons—in the legislation, rather than on each occasion being assessed by, in the first instance, someone fairly junior. In Clause 16(8), there is provision for an action or possession being for the purpose of
“providing, or preparing for the provision of, medical care or emergency shelter or supplies”.
Our amendment would insert “humanitarian support”. It seems that there is no difference between us as to the importance of promoting human welfare, so referring to it in the Bill follows from that.
I have been prompted having heard of so many refugees—I do not know whether this is a good example of a humanitarian matter or not—being keen to progress their education, or to work in a profession or another activity for which they have qualifications, but not when they get here being able to prove what qualifications they have. Bringing a document showing those qualifications would not be for the purposes of a “relevant journey”, but it is not irrelevant either to an asylum seeker for his or her future life. As I say, this is a probing amendment.
Amendment 60 concerns a matter raised by the organisation Justice and would except from the offences a person carrying out a legal activity, as defined—in other words, providing legal services. Perhaps I should declare—there have been a lot of declarations this afternoon and evening—that I was a solicitor, but that feels like a million years ago, so it is not personal. Everyone involved in the Bill will be aware of the shortage of good lawyers working in this field and available to undertake work on a legal aid basis or through a charity. The Bill is drafted widely, so it does not necessarily preclude the defence that it is for legal services, but I do not think that would be a huge encouragement to lawyers who might be worried about exposing themselves to a charge.
Lawyers, as a breed, are not always popular and are not always, in this field, trusted by the Government of the day, because the work almost inevitably means challenging the Government. If we are not further to risk access to justice, which is already an issue, we should not add further deterrents to legal practice in the asylum and refugee field. So the amendment proposes a specific exemption from prosecution.
Lord German (LD)
My Lords, there are only two amendments in this group, both of which are from my colleague and noble friend Lady Hamwee. They both probe whether providing humanitarian support and legal services is a reasonable excuse in the offence in Clause 16:
“Collecting information for use in immigration crime”.
While we welcome the inclusion of the defence of “reasonable excuse” in Clause 16 and the inclusion of those examples already contained in the Bill, we consider there to be a notable and concerning omission, namely an exception for those providing legitimate legal advice and preparing legitimate legal claims.
Given that I have just received an email from those representing lawyers stating that the Ministry of Justice has increased the amount of pay that it is giving for immigration lawyers—it is not sufficient, I am told by the lawyers’ association, but there is nothing surprising about that—it would be very strange indeed if they were to be subject to any danger from providing that legitimate advice. Because those who represent asylum seekers in the UK provide legal advice about their rights and publicise their work, they should be confident that they will not be caught by one of the offences, given the wide drafting of the Bill. Although the Bill does not necessarily preclude a defence for such individuals, in our view, they should be specifically exempt from prosecution, otherwise those providing legal services to vulnerable individuals will be left in an uncertain position, which, in turn, will create an unjustified risk to access to justice and the rule of law.
Lord Cameron of Lochiel (Con)
My Lords, I am afraid that I will again speak against the amendments in the name of the noble Baroness, Lady Hamwee. I recognise that both these amendments are probing amendments, but I suggest they are unnecessary. Clause 16 already provides a robust and comprehensive defence of reasonable excuse for those charged with the offence and collecting information for use in immigration crime. Subsection 8(b)(v) explicitly references those preparing to provide medical care or emergency shelter or supplies. In plain terms, that is humanitarian assistance.
Indeed, subsection 8(c) goes further by protecting those acting on behalf of bona fide organisations assisting asylum seekers. So it is our view that humanitarian activity is not only covered but it is expressly protected in the text. Therefore, to insert an additional, open-ended reference to humanitarian support simply risks introducing ambiguity to a legal provision, which already strikes a careful balance between protecting genuine humanitarian actors while still enabling the prosecution of those who aid illegal immigration. It is vital that the law is clear and enforceable and it is our view that the clause already offers wide and meaningful protection to doctors, volunteers, NGOs and others engaged in humanitarian work.
On Amendment 60, again in the name of the noble Baroness, Lady Hamwee, I completely understand the desire to ensure that legal professionals are not inadvertently caught up in Clause 16, but I disagree with the amendment as it stands. It seeks to add a new limb to the reasonable excuse defence, namely that a person was carrying out a legal activity as defined by the Legal Services Act. It is arguable that that protection already exists in the clause as drafted; it is a flexible and general defence in terms of reasonable excuse, and subsection (8) sets out several examples of what that defence might include: journalism, academic research, rescue efforts et cetera, but crucially also those acting on behalf of legitimate asylum support organisations. I respectfully say that this is a deliberately broad and protective provision. It gives courts ample discretion to protect those acting lawfully, including legal professionals who are working to assist asylum seekers.
As I said, I understand that these are probing amendments, so I am sure it would be of benefit to the whole Committee to hear the Minister’s response, although, as it stands, our perspective on this matter is that the clause as drafted provides adequate protections for those acting in good faith.
The Minister of State, Home Office (Lord Hanson of Flint) (Lab)
My Lords, I am tempted to just say “I agree”, but it is important that we put some points on the record.
I thank the noble Baroness for her amendments. Amendment 59 seeks to include an explicit carve-out in the clause to list humanitarian support as a reasonable excuse. The list of reasonable excuses is already quite wide and includes specific exemptions for those undertaking or preparing to undertake the rescue of individuals from danger or serious harm, as well as for those acting on behalf of organisations that provide assistance to asylum seekers and do not charge for their services. I put to the noble Baroness that the list of reasonable excuses in this clause is non-exhaustive, and the provisions ensure that legitimate humanitarian activity is not captured by the offence. I hope that with that assurance, she will withdraw Amendment 59 accordingly.
Amendment 60, again to Clause 16, also provides a list of very reasonable excuses where a person acts for a purpose that is reasonable in the circumstances. That list is non-exhaustive and the wording is intentionally broad to allow courts to assess on the facts of each case whether an individual’s conduct falls within the scope of legitimate activity, including carrying out legal work. In practice, as previously mentioned, law enforcement agencies exercise investigatory discretion when assessing the circumstances of any case, and the prosecution will apply the public interest test when considering charges. That means that individuals acting within the scope of their legal role will not be targeted for prosecution. I hope that gives the noble Baroness some reassurance on the points that she has raised in the amendment.
The clause as drafted provides robust protection for those acting lawfully while allowing law enforcement to focus its efforts—as I have said in every discussion we have had to date—on the groups facilitating illegal and dangerous crossings. I hope that is a reassurance to the noble Baroness and she will not press the amendment, but essentially these are areas where we think there is clarity. Therefore, I hope she will reflect on those points and withdraw the amendment.
Baroness Hamwee (LD)
My Lords, of course I recognise that the lists are not exhaustive. It seemed to me to be fairly helpful to use the term “humanitarian”—but there we are.
I am puzzled by the opposition to the reference to lawyers acting in the field. I wonder whether anybody in this Chamber who provides professional services would like to be dependent on discretion, on the public interest test, particularly when the specific provision in subsection (8)(c)(ii) is that the organisation
“does not charge for its services”.
The legal aid lawyers and others acting for asylum seekers and refugees do not get paid very much, and sometimes they are employed by charities that do not get paid directly for their services, although they raise funds to enable them to carry out those services.
This is not special pleading on the part of the legal profession. It is pleading on behalf of the recipients of legal services, in fact, because of the widespread concern that the relevant legal services are not easily accessed. There are far too many legal aid deserts and far too few people who are in a position to provide advice and representation in this field. I had better not say—I suppose I am about to—that it strikes me a little that “not invented here” is the response to this. That will not win me any friends, but I do not see a damage or a harm that would be caused by including an amendment on the lines of the second in this group.
I am clearly not going to pursue the matter tonight, but it is a concern if this is not accepted and if individuals are told they should just be dependent on discretion and the CPS’s good sense. I beg leave to withdraw the amendment.
Lord Davies of Gower
Lord Davies of Gower (Con)
My Lords, Amendment 63 seeks to future-proof the offence in Clause 18 of endangering another during a sea crossing. As currently drafted, the clause risks failing in its central purpose: to deter and prosecute those whose actions endanger lives at sea, regardless of where they are travelling from. Perhaps we should remind ourselves of what Clause 18 is intended to do. It is designed to create an offence for conduct that places others at serious risk of harm during unauthorised maritime crossings to the United Kingdom. That is a vital and necessary objective, especially given the number of people who choose to make this crossing—the number has breached 20,000 this year so far, a record high—and the very real risks of injury and loss of life for those involved.
However, as it stands, Clause 18 applies only to those travelling from France, Belgium or the Netherlands. I understand completely that those three countries are where the small boats are currently leaving from, but it is not necessarily true that this will always be the case. While this territorial limitation is not entirely arbitrary, it is illogical—it is predicated on a snapshot of today’s dominant routes, but we know all too well that the modus operandi of smuggling gangs is constantly evolving. Routes shift; departure points change. Those intent on profiting from human desperation will exploit any gap in enforcement or jurisdiction that we leave behind. What happens when a boat departs from Denmark, Germany or further afield? What if a criminal network re-routes its operations through new maritime channels not explicitly listed in the Bill? Are we to say that the same dangerous conduct, the same reckless disregard for life, somehow falls outside the scope of the offence? That is not a credible position, and neither is it a safe one. This amendment would ensure that the law is not constrained by geography. It would ensure that we legislate for principle, not convenience; that we criminalise the act of endangerment itself, wherever it occurs, not merely based on where the journey begins.
Our Amendment 64 in this group speaks to another critical shortcoming. The Bill as drafted appears to require a discrete, identifiable act that causes or risks serious harm, but in the case of these maritime crossings, the danger is not always the result of a single act. It is inherent in the crossing itself. It lies in the overcrowding, the use of flimsy dinghies and the absence of life jackets, navigation tools or any basic safety standard.
The act of stepping aboard such a vessel with others, knowing that it is patently unsafe, is itself the creation of danger and the act which places lives at risk. This very principle was, at the end of last week, endorsed by the Home Secretary, when she said that:
“Everybody who is arriving on a boat where a child’s life has been lost, frankly, should be facing prosecution … If you get on to a boat which is so crowded that a child is crushed to death in the middle of that boat … you should face some responsibility and accountability for that”.
We wholeheartedly agree, and our amendment seeks to incorporate this principle of collective responsibility into the Bill. Our amendment differs from the principle set out by the Home Secretary in one important way. It recognises this risk pre-emptively. It does not require tragedy to occur before the law is broken. If we are serious about saving lives, we cannot wait for them to be lost before we act. We need to intervene to ensure that actions taken to endanger life are themselves illegal.
The Government already recognise that the act of getting into a boat is dangerous and that everyone who gets into that boat is thereby creating a risk for other people. We therefore hope that they will agree that this principle should be applied proactively to save life, not just reactively once it has already been lost, and adopt this amendment to the Bill. The amendment is about targeting those who act with recklessness or self-interest in ways that expose others to mortal peril. We all recognise that the act of getting into a boat is creating that risk. This is our opportunity to combat those who, regardless, choose to do so.
The House has a duty not only to scrutinise the law but to ensure that it aligns with lived realities. Our amendments would make it clearer, more enforceable and more consistent with the Government’s stated goals.
On the other amendments in the group, Amendment 65, tabled by the noble Baroness, Lady Hamwee, would insert a requirement that for an offence to be committed under Clause 18, the individual must have acted “intentionally or recklessly”. The stated aim is to ensure that the offence targets people smugglers rather than those seeking asylum. However, this entirely misunderstands the purpose of the clause and the reality of these dangerous sea crossings. The threshold for this offence is already clear. It requires that a person commits an act that causes or creates a risk of death or serious injury during an illegal maritime journey.
As we have rightly recognised in our own amendment, the very act of boarding a dangerously overcrowded and ill-equipped vessel to cross the channel is reckless. It is done not in ignorance but knowingly, with an awareness of the risks not just to oneself but to others on board. This therefore automatically meets the “intentionally or recklessly” threshold that the noble Baroness talks about. To insert this new mental element, “intentionally or recklessly”, is not a clarification but an unnecessary restriction. It risks introducing a legal loophole that could allow individuals to escape prosecution, even where their actions had demonstrably endangered lives. We must not forget that the endangerment to life is a collective responsibility. The people whom we are talking about have knowingly made the decision to endanger themselves and, crucially, others.
This offence is not designed to criminalise those merely seeking safety; it is designed to ensure that anyone, whether a smuggler, pilot or fellow traveller, who engages in conduct that places lives in jeopardy can be held accountable. We cannot allow the law to be softened to the point where it fails to deter the reckless behaviour that is putting people, including children, at risk. This is not an academic concern. People have died making this crossing. People will continue to die making it unless we take robust action now which recognises the danger that this collective action creates.
Amendment 66, tabled by the noble Lord, Lord German, addresses a similar point and falls to the same problem in assuming that endangerment to life is an act that can be limited to a small number of people who are likely not on the boat at all. We must ensure that we prosecute people for the actions that they take, the risks that they run and the danger that they pose to others. Whether this is done for personal or financial gain is an unnecessary additional clarification which misses the point that the people whom we are talking about have endangered lives and well-being simply by choosing to get into the boat in the first place.
Finally, Amendment 67, in the name of my noble friend Lady May, serves as an important reminder in this debate that we need to consider the plight of those acting under duress of slavery, but I have to say to her that we have the same concerns about this amendment as those which I raised earlier. I am conscious of what my noble friend Lord Cameron said on an earlier amendment, which is that it risked creating a loophole which could be exploited by bad actors looking for a way to get out of being held to account for the crimes they will be committing. That said, I welcome the amendment from my noble friend, again on the grounds that it raises important issues which I hope the Minister will fully address in his response. I beg to move.
Baroness May of Maidenhead (Con)
My Lords, I remind your Lordships of my chairmanship of the Global Commission on Modern Slavery and Human Trafficking.
I want to address Amendment 67, which my noble friend Lord Davies has just referred to. I tabled this with a very specific issue in mind—I hope the Minister will be able to address it in his closing remarks—which is those circumstances where somebody who is in slavery is put on to a boat but is forced as part of their slavery to take charge of a child and therefore is potentially endangering that child, but they are doing so because their slave driver has required them to do it. It is a very specific point, and I hope that the Minister can address it.
The Minister will recognise that there is a theme in all the amendments I have tabled, which is recognising that there are circumstances in which people are forced to take these actions as a result of their being in slavery, as opposed to it being a decision that they have taken for their own economic reasons. There is a small group of people to whom this might refer, so this is a probing amendment to see where the Government might stand on the issue and how they will want to address this very specific case of somebody who is forced by their traffickers or slave drivers to look after somebody else on a boat.
Lord German (LD)
My Lords, I speak to the amendment in my name and that in the name of the noble Baroness, Lady Hamwee. We have probably exhausted the use of recklessness—we have had it, virtually, in every other group—but, in essence, I also have a very specific issue to raise in respect of the amendment in my name, which, again, is about ensuring that the right people are criminalised. It is about those who are coerced into steering the dinghies which have been made available.
Paragraph 57 of the JCHR report refers to research by the associate director of border criminology at Oxford University, who said that
“the most common reasons for driving the dinghy were being under duress from smugglers in Northern France; needing a discount on the crossing; or having previous experience driving boats, either from previous employment or irregular journeys”.
There are differences between those groups, and it is the group of people who are under duress that are of interest in this amendment.
First, I want to be clear that the actions of criminals who run the boats in northern France are appalling. They have total disregard for human life. They are not a benevolent facilitator of asylum seekers but criminals who see this trade as a source of great profit. I was able to see a number of those dinghies in the last two weeks, and I heard from the French authorities about some of the actions and tactics that the smugglers adopted towards migrants to evade law enforcement and maximise profit by cramming as many people as they can on to those flimsy boats.
I want to explain something to people who often ask me, “Why don’t you just cut and slash the boat?” There was an example of that last week when the French authorities went into the water but slashed only one cylinder. The reason for that is that those boats have no solid base inside between the floating parts. If you slash them, the boat folds in half and drowns all the people already in the middle of the boat. Therefore, the French authorities are most concerned about taking that sort of action and are much more concerned about going for the motors, which is what I hope they will be doing in the coming weeks. It is right that those forcing people on to these boats should face the full force of the law. Having seen the flimsiness of them, I am absolutely convinced that it is all about making huge amounts of money.
The problem is that this offence is drawn more widely than the Government have set out as their intention. If we are looking solely at people who are coerced or compelled to steer the boat under duress from the smugglers, that is not very much different from the coercion of victims of trafficking, as highlighted by the noble Baroness, Lady May, in this and previous amendments. As the clause is currently drafted, it is not focused sufficiently on those who the Government wish to target and would also catch those asylum seekers who are victims of coercion. I am told that you can identify the people who have been steering these boats: the heat from the very cheap engines means that people get burns on their hands as a result of doing it. I know that the British and the French authorities can easily identify who has been steering a boat; the difficulty is whether that person has been coerced into it. That is why this amendment is in place—simply to give an opportunity to understand what the Government would do in those circumstances.
I appreciate that, in Committee in the House of Commons, the Minister stated that:
“In practice, the focus will be intelligence-led and targeted at those who law enforcement believe to be working in connection with organised criminal networks”.—[Official Report, Commons, 4/3/25; col. 128.]
It was also stated that
“the CPS will exercise … discretion, and the courts will be able to consider all the circumstances when deciding the appropriate sentence”.
While prosecutorial discretion is an important safeguard, maybe it is not a substitute for clarity within the Bill itself. On that very specific matter, I ask the Minister to give his consideration.
I must also say, in respect of the earlier amendments that we have just heard, that it seems to me that the Conservative Party wants to treat everyone in the boat as a criminal. If that is the case, does the Minister agrees or disagree with that? If he agrees, what is the consequence of treating asylum seekers as criminals when they arrive in our country?
Lord Hanson of Flint (Lab)
I am grateful to noble Lords for tabling these amendments. I think there is a common aim in the Committee to ensure that we take action to prevent illegal migration, dangerous crossings and fatalities at sea. While we may have different views on some of the issues, this is a common aim that we all share. The endangerment offence, which we will talk about now, is a tangible measure to address dangerous acts during crossings and introduces consequences for such behaviour that risks or causes serious injury or death.
A number of amendments have been brought forward by noble Lords. I start, if I may, with Amendments 63 and 64, in the names of the noble Lords, Lord Davies and Lord Cameron of Lochiel. Amendment 64 seeks to apply the offence to any individual who enters the UK illegally using a vessel that they could not reasonably have thought was safe for the purposes of reaching the UK, and Amendment 63 seeks to remove reference to specific countries.
I understand the intention of Amendment 63. The named countries in Clause 18 are appropriate to capture the focus on channel crossings, which is the Government’s main focus with this legislation, and provide clarity on which body of water is the focus. The reason we have looked at the particular three countries named in the Bill is that that is where the majority of the focus is today. I understand the points that the noble Lord has mentioned, but this has been done to focus the approach on channel crossings.
Amendment 64 would fundamentally alter the focus of Clause 18. Instead of targeting specific acts, this amendment would criminalise any person for boarding an unsafe vessel. The reality is that none of the vessels can reasonably be considered safe, which means the amendment would capture all those making a journey. Is it in the public and taxpayer interest to put every small boat arrival through the criminal justice system? I sense agreement from the noble Lord, Lord German, on that point.
The Government do not condone crossings, far from it. Noble Lords have heard during this debate that we are focused on taking action. However, the decision to board these flimsy boats is often made in chaotic circumstances, with the condition of the boat and the passage outside the individual’s control. We saw some of this in pictures at the weekend when the French took action. Setting out what is reasonable in that scenario is almost impossible, and what may be judged safe in one moment may quickly change. The weekend’s events showed that very clearly. Furthermore, adding the requirement of an unsafe vessel does not add to existing offences of illegal entry and arrival. I hope the noble Lord will reflect on that explanation.
Amendment 65, tabled by the noble Baroness, Lady Hamwee, would require that the relevant act was done “intentionally or recklessly”. Amendment 66, in the names of the noble Lord, Lord German, and the noble Baroness, Lady Hamwee, would require the act to be committed intentionally and/or for financial gain. I recognise the intention behind requiring that the person committed the act intentionally or recklessly. That mirrors the recommendation by the Joint Committee on Human Rights, which I will respond to before Report. I thank the committee for its work and will consider its conclusions carefully. However, the amendment as currently proposed would undermine the effectiveness of the offence. Focusing on whether someone commits an act intentionally or recklessly pulls the focus of the offence away from the serious harm or risk of such harm caused to vulnerable people in these situations and, crucially, would make it easier for criminals to evade the offence.
Adding a requirement for financial gain would undermine the intended effect. A person does not immediately need to financially gain for it to be appropriate for there to be consequences for dangerous acts that cause or risk serious injury or death of another. The amendment conflates measures in the Bill that tackle the facilitators behind small boat crossings and those, such as the endangerment offence, that are a response to the serious harms posed by individual actions. Those who cause risk or harm should face consequences.
The endangerment offence rightly targets the most dangerous forms of behaviour and offers increased sentencing. Existing safeguards are in place. Prosecution services will, as I have said throughout the Bill, consider the particular facts of a case and whether it is in the public interest to prosecute. I hope I can reassure the noble Baroness and the noble Lord, Lord German, that the offence has been designed to be proportionate and effective, and addresses the most dangerous behaviour in order to reduce harm.
I thank the noble Baroness, Lady May, for Amendment 67. This may bring her a sense of déjà vu but I am going to say pretty much what I said in the last group of amendments. It is our assessment that Section 45 of the legislation that she facilitated in 2015 is a defence against prosecution where an individual commits the offence as a direct result of, or is compelled to commit an offence as a result of, their exploitation. The example the noble Baroness helpfully gave of a person entering a boat to save a child would be covered by Section 45 of that Act. It includes the catch-all defence of modern slavery for actions deemed to be criminal under this legislation. The national referral mechanism, which I know the noble Baroness is familiar with, is part of that defence, and I hope that those safeguards are in place.
On top of that, we have the standard prosecutorial defence mechanism whereby the prosecution—the CPS in this case—would have to make a judgment. The example that the noble Baroness has given would, I think, give pause for thought for that discretion by the CPS. With the general criminal defence of duress, I hope those two issues together will reassure the noble Baroness on that point.
The new endangerment offence addresses the current gap in legislation. We have specifically and carefully designed it to address dangerous acts that create further risk in what are already dangerous crossings. I hope that gives some comfort to the noble Lords who tabled the amendments. It is about focus on the channel. It is about making sure that we give proper protections where required and that we have clarity in the law. I hope that they will not move their amendments.
Lord Davies of Gower (Con)
My Lords, I am grateful to those who have spoken. Clause 18 seeks to address a very real threat to life, but none the less confines itself to an arbitrary, narrow set of departure points, as if dangerous crossings were the exclusive preserve of the channel route. This is plainly not the case, and it is naive to legislate as though it were. If we want to future-proof our border laws, they must reflect the realities of irregular migration as they evolve; we must not freeze them in the present moment and base them on the sort of activity we see now, rather than that which could emerge in the future.
More than that, the amendments go to the heart of what it means to endanger life at sea. The danger does not begin when a trafficker pushes someone overboard. It begins the moment an individual, whether an organiser or a participant, boards an unseaworthy vessel, knowing it is not fit for the journey and puts lives at risk, often doing so for profit. I want to emphasise the point that we are not seeking to criminalise desperation. We are seeking to hold accountable those who, through their actions, their choices or their complicity endanger the lives of others. I will consider what the Minister has said but, for the time being, I beg leave to withdraw the amendment.
Baroness Hamwee
Member’s explanatory statement
This amendment is intended to remove the retrospective element of some, but not all, of the offences.
Baroness Hamwee (LD)
I also have Amendment 209 in this group. Clause 19 defines “relevant person” for the purposes of search and so on in relation to what these days are simply called “devices”. There are other terms in Clauses 20 to 23. The amendment particularly goes to the point of retrospectivity. The clause provides that a relevant person is someone who has entered or arrived, whether before or after the section comes into force. The amendment would leave in as a subject someone who has entered in breach of a deportation order. It seems to me that there is a rather different flavour to retrospectivity here, because the individual knows what he is doing. Having been on the receiving end of a deportation order, he can hardly ignore that that is going to be relevant.
In the other cases, the wording puts it into the future: if the person
“requires leave … requires entry clearance … is required … not to travel … without an electronic travel authorisation”.
In parentheses, I wondered about the term “entered” compared with “arrived”, which I think might technically be the position, and the Explanatory Notes do not seem to help—but that is by the way. That first amendment would deal in all but one of the cases in this clause with the retrospective element.
Amendment 209 would require the affirmative procedure for regulations under Clause 25, extending powers to persons designated by the Secretary of State. This is a point made by the Constitution Committee, of which I am a member. As we said in our report, the committee has
“previously raised concerns about the extension to persons who are not recognised legal officials of powers which might be used to interfere with individual liberty”.
The Government say that the requirements would not create any new powers; they would extend the cohort of people who can use the powers, and the Secretary of State can impose such safeguards as she considers appropriate. The Constitution Committee reminds the Committee not only that it has previously raised these concerns but that the safeguards about designation of other people should be set out on the face of the Bill, so that this is not left to the discretion of the Secretary of State.
The affirmative procedure is of some assistance in scrutinising—but not really blocking—the provisions. It would, of course, enable parliamentarians to debate and scrutinise in public this power of the Secretary of State to designate whoever it might be.
The Bar Council has raised another issue on the provision that the Bill will allow civil servants, if so designated, to access and keep information found on devices. A police constable exercising powers such as these needs authorisation from a superintendent; that is the usual level of authorisation. This Bill will allow junior Home Office civil servants and immigration officials to do so without oversight.
The Bar Council has briefed on its concern about the potential for violating the rights of privacy and legal privilege of people who may have entered the UK years ago and are engaged in legal proceedings against the Home Office.
So, that is a range of concerns, which I hope would be addressed by my amendment. I beg to move.
Lord Davies of Gower (Con)
My Lords, it would be remiss of me if I did not begin my remarks on this group by mentioning the puzzling inclusion of Clauses 20 to 23 in the Bill, given that these powers already exist in statute. Section 15 of, and Schedule 2 to, the Illegal Migration Act 2023 already grant these exact same powers of search, seizure and access for electronic devices. Rather than retain the provisions that are already law, the Government are repealing those parts of the Illegal Migration Act and then re-enacting them through this Bill; I would submit that that does not really make much sense.
In fact, the wording of the sections that the Government are repealing are virtually identical to the clauses in the Bill. Paragraph 3(1) of Schedule 2 to the Illegal Migration Act says:
“An immigration officer may search a relevant person for any relevant article, if the officer has reasonable grounds to suspect that the relevant person is in possession of a relevant article”,
while Clause 20(1) of the Bill says:
“An authorised officer may search a relevant person for any relevant article if the officer has reasonable grounds to suspect that the relevant person is in possession of a relevant article”.
The only difference is that the Bill grants the powers to an authorised officer rather than an immigration officer. I understand the purpose of the distinction, as Clause 19 states that under the Bill the powers will be able to be used by police officers as well as immigration officers. I have no issue with that, but why repeal the whole of paragraph 3 of Schedule 2 to the Illegal Migration Act simply to replace one word?
The similarities continue. Paragraph 4 of Schedule 2 to the Illegal Migration Act authorises the search of vehicles and containers for electronic devices, and Clause 20(6) of the Bill does exact same thing. Paragraph 5 of Schedule 2 authorises the search of premises for an electronic device, while Clause 20(5) does the same thing and has the same wording. Paragraph 6 of Schedule 2 authorises the search the person’s property for an electronic device, while Clause 20(4) does the same thing and has the same wording. Paragraph 7 of Schedule 2 authorises the seizure of electronic devices, while Clause 21(1) of the Bill does the exact same thing and has precisely the same wording. I could go on, but I believe it should be blindingly obvious that there is no practical purpose to Clauses 20 to 23; they are simply regurgitated provisions of already existing statute that the Government are performatively repealing.
I turn to one of the very few aspects of the powers relating to electronic devices that the Government have actually changed. My Amendment 69 is intended to probe the Government’s definition of “relevant articles” from which electronic information can be accessed and stored under Clauses 20 to 23. As drafted, the Bill essentially defines that as any electronic item that could contain information relating to an offence under Section 25 or 25A of the Immigration Act 1971. Consequently, the powers under Clauses 20 to 23 can currently be used only to garner information relating to the facilitation of unlawful entry or the illegal facilitation of the arrival of asylum seekers.
However, those are not the only offences that immigration officers might need to access electronic devices to investigate. For example, what about the information on electronic devices pertaining to offences under Section 24 or Section 24A of the Immigration Act 1971? If the Bill is aimed at tackling illegal immigration and protecting our border security, should it not address that in its totality? Why should immigration officers and police officers not be able to utilise information they have gleaned from the electronic devices of illegal entrants as evidence of the commission of the offences of illegal entry or the use of deception to gain leave to enter or remain? Is the prevention of those offences not crucial to our border security?
The previous Government recognised that these powers need to extend to information relating to a wider range of offences, which is why in the Illegal Migration Act we did not limit the definition of electronic devices in such a way. Rather, relevant articles were defined as anything containing information related to
“any function of an immigration officer, or … of the Secretary of State in relation to immigration, asylum or nationality”.
That offered a far wider-ranging power to investigate the whole plethora of immigration crimes, all of which would fall under the Government’s definition of border security in Clause 3 of the Bill.
The Prime Minister has spoken on many occasions of giving the Border Security Commander counter- terrorism-like powers. I have to say to the Minister that the substance of what is contained in Clauses 19 to 23 is utterly consistent with the tough language that the Government have been throwing around, and if they are indeed serious about matching their rhetoric with their actions then they should accept Amendment 69 and expand the definition of relevant articles in Clause 19.
Lord German (LD)
I look forward to hearing the response of the Minister to the cut-and-paste threat which has been put upon him. I hope that there is a satisfactory answer that will make me smile. If it does not, then maybe there is a point to be made somewhere.
I echo the point the noble Baroness, Lady Hamwee, made about Amendment 209. It has been a promise to this House from many reports—from legislation committees and from the Constitution Committee—that, where there is a matter of seriousness and public interest, the affirmative process should be used to bring these matters before the House. The current arrangement is for a police constable, authorised by a superintendent, but there is an openness for Ministers to extend these powers. You might say that it does not matter to whom they give the powers and, if anybody feels really upset about it, they could pray against the Motion, which is a very rare thing in this House and in the House of Commons. What it means is that the Government are not prepared to allow that public scrutiny to ensure that they have got the matter right.
It would be a sensible approach to follow the pattern that the Lords committee responsible for these matters has laid before us and to change this from a negative to an affirmative procedure when regulations are brought forward to extend the list of people who will have these powers. I also take note of the interesting comment from my noble friend about who in the Home Office will supervise whom about what access anybody can have. I would like to know a little about the chiefs and the Indians if possible, please.
Lord in Waiting/Government Whip (Lord Katz) (Lab)
My Lords, I am grateful for the thoughtful contributions made by the noble Baroness, Lady Hamwee, and the noble Lords, Lord Davies of Gower and Lord German. Amendments 68, 69 and 209 raise important questions about the scope, application and oversight of the powers in the Bill.
I will address the comments made by the noble Lord, Lord Davies, around Clauses 20 to 23 being lifted from the Illegal Migration Act. The noble Lord, Lord German, is smiling already; maybe he anticipates a cracking punchline—but there is not one. It is a simple fact that, clearly, one of the chief intentions of this legislation is to replace the Illegal Migration Act. It was deemed easier in drafting terms to do that and then include certain sections that were deemed worthy of keeping in this Bill, rather than simply have to go back and unpick the Illegal Migration Act in different parts of the Bill. It was felt that this was a cleaner way of doing it. I am not sure if that has made the noble Lord, Lord German, smile; it has not particularly raised a laugh with me, but there we go.
While I recognise the intentions behind each proposal, I will respectfully set out why the Government do not support them. In each case, the current drafting of the Bill is deliberate and proportionate and designed to ensure operational effectiveness, legal clarity and appropriate safeguards.
Amendment 68 seeks to limit Clause 19 by removing what is perceived to be a retrospective effect. I want to be clear that Clause 19(2)(a) does not operate retrospectively in the way suggested by the noble Baroness, Lady Hamwee. The powers in the clause come into effect only after the Bill receives Royal Assent. The clause has been carefully drafted to ensure that powers apply regardless of when an individual entered or arrived in the UK before that date.
This is not retrospective legislation. Individuals who entered the UK without leave did so in breach of immigration laws that were already in place at the time of their entry. The clause does not impose a new penalty for past conduct. Instead, it enables the powers to be used from the moment they come into force, provided that the individual still meets the relevant criteria at that time. This approach ensures that the law can respond effectively to ongoing encounters of individuals who have already arrived illegally in the UK and does not create loopholes that could be exploited by those who may look to take advantage of immigration controls.
The amendment, while well intentioned, would narrow the scope of Clause 19(2)(a) and undermine its operational effectiveness. It would create a two-tier system, in effect, treating individuals differently based on the timing of their entry or whether they are subject to a deportation order, and result in missed opportunities to gain valuable information to stop organised immigration crime groups. In summary, the clause as drafted strikes the right balance: it is not retrospective in its legal effect, and it is forward-looking in its application. It ensures that the Government can act decisively to protect the integrity of UK borders and uphold the rule of law.
I turn now to Amendment 69, which proposes to broaden the definition of a “relevant article” to include any article containing information on the commission of an offence under any of the immigration Acts, as defined in Section 61(2) of the UK Borders Act 2007. While I understand the desire to ensure comprehensive coverage of immigration offences, I must respectfully oppose this amendment too.
The current drafting of Clause 19 is deliberately narrow and targeted. It focuses on offences under Sections 25 and 25A of the Immigration Act 1971, offences that relate specifically to facilitating unlawful immigration and assisting illegal entry. These are the offences most relevant to the operational intent of this clause: to disrupt organised criminal networks and protect the integrity of our borders. Expanding the definition to include all offences under the immigration Acts risks capturing a wide range of minor or administrative breaches, such as overstaying or failing to comply with conditions, which are not the intended focus of this power. Our concern here is that such a broad approach could undermine the proportionality of the measure and expose it to legal challenge.
Amendment 209 seeks to amend Clause 60 so that regulations made pursuant to Clause 25 are subject to the affirmative procedure, as pointed out by the noble Baroness, Lady Hamwee, and the noble Lord, Lord German, and recommended by the Lords Constitution Committee. While we fully respect the committee’s role in scrutinising delegated powers, we respectfully disagree with the necessity of this amendment and the affirmative procedure.
Clause 25 does not create new powers; rather, it allows for the extension of existing powers to a broader cohort of authorised officers. The use of the negative procedure in this context is appropriate and proportionate. Moreover, Clause 25(3) provides an important safeguard that the Secretary of State is required to include such safeguards as they consider necessary. This ensures that any extension of powers is accompanied by appropriate checks and balances. The negative procedure is appropriate for this type of technical and operational regulation, which ensures agility without unduly compromising oversight. Regulations made under the negative procedure are still laid before Parliament and subject to annulment, providing a clear route for scrutiny while avoiding unnecessary delay in operational matters. Conversely, requiring the affirmative procedure in this case would introduce unnecessary delay and complexity into what is a targeted and operationally focused provision that must be able to respond agilely to any challenges. The negative procedure strikes the right balance between parliamentary oversight and practical implementation. For these reasons, I urge noble Lords not to press their amendments.
Baroness Hamwee (LD)
My Lords, seeing the back of the Illegal Migration Act will be a great pleasure. I am with the noble Lord on it being better to have an easy-to-read version of this Bill, including provisions, rather than having to refer back to another piece of legislation. I do not think that is entirely the case throughout the Bill, but there we are.
On the retrospectivity amendment, I am not sure that I have followed the argument, since the wording of the clause is
“whether before or after this section comes into force”.
I thought the Minister was talking about a distinction being made because the clause would need to come into force before it had any effect, but I will have to read what he has to say.
The Minister says that Amendment 209 is not necessary, but I think that depends on your point of view. The checks and balances are better scrutinised through the affirmative procedure than through the negative procedure. I have heard what he has to say and I beg leave to withdraw the amendment.
Lord Hanson of Flint
“(c) a constable of the Police Service of Scotland,(d) a constable of the Police Service of Northern Ireland, or(e) an NCA officer,”Member’s explanatory statement
This amendment expands the definition of “authorised officer” for the purposes of the powers in clauses 20 to 23 to cover constables of the police services of Scotland and Northern Ireland and National Crime Agency officers.
Lord Hanson of Flint (Lab)
I begin by reaffirming the policy position of the Government for the use of search and seizure powers, which is an approach grounded in the principles of proportionality, accountability and the rule of law. The amendments in my name before the Committee today have an underpinning policy objective, and that is to ensure that the United Kingdom of Great Britain and Northern Ireland has the necessary powers to search for, seize, retain and use information from electronic devices belonging to irregular entrants or arrivals where there are reasonable grounds to suspect that an electronic device is likely to contain information relevant to the offences under Sections 25 and 25A of the Immigration Act 1971. These powers are vital to disrupt organised crime groups. We must ensure that authorised officers are fully equipped to use the powers effectively and we must have safeguards in place against misuse.
Government Amendment 70 expands the definition of “authorised officer” to include
“a constable of the Police Service of Scotland … Northern Ireland, or … an NCA officer”.
This now ensures that constables from devolved police services and the National Crime Agency, who were already authorised, may exercise the full powers available to them under the legislation.
The National Crime Agency-focused amendments that follow on from government Amendment 70—Amendments 75, 77, 79, 80, 81, 82, 83, 92 and 94—collectively ensure that NCA officers have all the relevant safeguards and protections and legal clarity in using these powers. Government Amendments 75, 79 and 92 require that the NCA officers exercising powers under Clauses 20, 21 and 23 must be authorised by an officer of at least inspector equivalent grade with the requirement to inform a superintendent or equivalent officer, in line with safeguards applied to police constables.
Government Amendments 77 and 81 provide protections under paragraphs 21 and 22 of Schedule 5 to the Crime and Courts Act 2013, ensuring that those who obstruct or assault an NCA officer during the exercise of their powers under Clauses 20 and 21 may face criminal prosecution. Government Amendment 80 enables NCA officers to use reasonable force where necessary in the execution of their powers under Clause 21. Government Amendments 82 and 83 provide for the lawful transfer of seized items to an immigration officer or the Secretary of State. I apologise for the number of amendments but I hope that they are all relatively straightforward. Government Amendment 94 provides legal clarity by defining “NCA officer” within Clause 26.
These amendments are necessary and proportionate to enable officers to perform their duties effectively. The National Crime Agency, as noble Lords will know, is the central agency in combating serious and organised immigration crime, and previously the Bill sought to include NCA officers by enabling them to use their immigration powers. However, NCA officers are triple warranted, holding the powers of constable, immigration officer and customs officer. Through ongoing engagement with the NCA, it became clear that it would be more operationally effective for the Bill explicitly to enable them to exercise their police powers under this legislation.
Government Amendment 70 extends these powers to the devolved police services in Scotland and Northern Ireland, so that we have consistency across the United Kingdom as a whole. Members will know that criminal organisations do not respect administrative boundaries and will operate wherever they can. Due to the inclusion now of devolved police services, government Amendment 89 ensures that appropriate legal procedures are in place for the disposal of relevant articles held by constables of Police Scotland and the Police Service of Northern Ireland.
There are several consequential amendments—Amendments 85, 86, 87, 88 and 93—which are minor and technical in nature, but will, I hope, help to ensure the legal coherence of the Bill. In essence, the amendments extend powers to the NCA, police in Scotland and police in Northern Ireland, with appropriate safeguards. I commend them to the Committee.
Lord German (LD)
To be absolutely clear, are there further amendments in this area to Clause 33 concerning trailers, or is that covered in this group? I will give the Minister time to think about that.
The Minister sent us a letter on 17 June relating to these amendments. On Scottish and Northern Ireland Ministers, the letter said that an amendment had been tabled to Clause 33(9)—this is why I ask the question—which specifies the persons and bodies to be consulted before making regulations under Clause 33(8), which is about trailer data. It says that: “at present, this amendment is framed in such a way that the Northern Ireland and Scottish Ministers need be consulted only where the Secretary of State considers it appropriate to do so”. In what circumstances would the Secretary of State consider it appropriate so to do? If he wants to answer some time later, that would be fine.
Lord Hanson of Flint (Lab)
I always hope to be helpful to the noble Lord. I suggest that we consider those matters in some detail when we reach Clause 33. These amendments relate to the additional powers for the National Crime Agency and bringing the Police Service of Northern Ireland and the Police Service of Scotland into the remit of the legislation. They have all been done in consultation with the three responsible bodies—the Home Secretary and the two devolved Administrations. I am very happy to examine Clause 33, but I think it would be in order to do so just after Clause 32 and before Clause 34.
Lord Davies of Gower (Con)
My Lords, we appreciate that, as the Government go through the Bill, they will make minor adjustments to the language or corrective amendments to tighten it up, but the amendments in this group incorporate substantial changes that could well have been included in the Bill before. The fact that we are now turning to 17 government amendments, with at least eight substantive ones, speaks to the fact that the Bill could have been more carefully drafted. I will not take too much time dwelling on this issue, but it is important to raise that we on this side have been clear throughout Committee that we need to develop legislation that is robust and unambiguous and that can tackle this serious problem. That the Government are only just realising at this late stage that they have missed out key provisions perhaps does not inspire confidence.
Broadly speaking, we support the amendments in this group, in so far as they allow the more effective enforcement of some of the provisions in this Bill, in particular specifying that the NCA will have the capability to seize relevant articles and exercise reasonable force. However, we need to make sure that these powers are exercised with due care and proper procedure and process. I hope the Minister will set out how this will be ensured.
Lord German (LD)
I have just double-checked all the amendments that have been laid, and there is none as was laid out in the letter. I will not ask the Minister to reply to this, but it is a lacuna. The letter says that an amendment has been tabled to Clause 33(9). According to the Marshalled List, it is not there. I do not expect a substantive reply, but I guess that an amendment will be laid, and the letter was slightly inaccurate.
Lord Hanson of Flint (Lab)
I hope that I have been clear with the noble Lord, Lord Davies of Gower, about what these amendments are for. As ever, as Ministers we all know that things are organic and in development. If requests come in, loopholes are found or things need to be tightened up, amendments are part of the parliamentary process, as is reflection on amendments that colleagues table on Report in both Houses from the Opposition and other Benches. It is an organic process. I hope I was clear, and I do not think he objects to the principle behind why they have been tabled. I am grateful for his support.
In reply to the noble Lord, I will just say that I do not write inaccurate letters. I try to be open and fair, which is why the letter was issued. We are not yet at Clause 33; I will give him chapter and verse on all the issues that he has raised when we get there, which is the appropriate part in our proceedings to discuss those matters.
Lord Davies of Gower
Member’s explanatory statement
This amendment would remove the requirement that a person can only be searched if they have not previously been searched.
Lord Davies of Gower (Con)
My Lords, our amendments in this group speak to the important principle that, if we are going to do something serious about this issue, we need to make sure those who will be undertaking that vital work are given all the tools they need.
Amendment 72 removes the restriction under Clause 20 that a person may be searched only once. That limitation is both arbitrary and impractical. In the real world, people arriving in the UK illegally may conceal items, documents, electronic devices and false identification, only to reveal or discard them later. Preventing further searches, even when officers have fresh grounds for suspicion, is not a safeguard; it is a gift to traffickers and smugglers. This amendment would correct that mistake and restore operational flexibility where there is lawful cause. Indeed, we need look no further than the Police and Criminal Evidence Act 1984 for precedent and recognition of this fact; it permits multiple searches of a person if there are reasonable grounds. This is a commonplace power and we must ensure that it is incorporated in the Bill if we are to effectively tackle this sort of criminality.
Furthermore, Amendment 73 removes the requirement that a person must have been on the premises before a search can take place. Criminal organisations are constantly adapting their tactics, using safe houses, transferring items between locations and avoiding detection by not being physically present. By tying an officer’s hands to whether a suspect was on the premises at a precise moment, we risk losing vital evidence and allowing dangerous networks to evade accountability. This change would ensure that we are not outwitted by legal technicalities.
Furthermore, Amendment 74 removes unnecessary bureaucratic hurdles that require prior authorisation from an inspector and notification to a superintendent for a constable to conduct a search. Amendment 78 applies this principle to the seizure of relevant articles. Of course, oversight is vital, but we must not confuse oversight with obstruction. Our officers already operate within a strict legal framework and we are of the view that adding yet another layer of sign-off, particularly in time-sensitive operations, risks slowing down action, delaying disruption and missing crucial opportunities to intercept criminal activity. Officers need to be able to respond quickly, flexibly and effectively if we are to stand up to those who violate our borders. Indeed, constables are not subject to this requirement to seek permission to conduct a search under Section 1 of the Police and Criminal Evidence Act, and in Section 18 of that Act, police offers are only required to inform an officer of at least the rank of inspector as soon as is practicable after they have conducted a search, not before. This provision to seek permission is therefore unnecessary and not in line with the relevant existing legislation.
These amendments are about restoring operational realism and strengthening our capacity to protect. If we are serious about securing our borders, cracking down on illegal entry and dismantling the networks that exploit vulnerable people for profit, we must give our officers the clear, workable powers they require. These amendments are sensible proposals that would cut back bureaucracy and allow us to get on and deal with this problem more effectively.
Finally, Amendment 91 would remove the requirement that a constable must obtain authorisation from an inspector and that the inspector must notify a super- intendent before accessing, copying or using information from a relevant article seized under Clause 23. We need to be clear on this. Clause 23 deals with information that may relate to the commission of serious immigration offences. In such cases, time is not a luxury. It is often the difference between success and failure—between a dismantled network and a missed opportunity. Indeed, this issue runs through all the amendments that I have spoken to in this group.
The current drafting imposes a two-tier authorisation system before any such information can even begin to be examined. The requirement to obtain inspector-level authorisation for each individual access, and then to escalate that to a superintendent, adds a bureaucratic burden that could hinder fast-moving investigations, especially when such information could reveal links to other suspects, routes and wider criminal infrastructure. Our amendment would ensure that our officers have the practical powers they need in a way that means they can be exercised with urgency and purpose. The constable will still be required to act lawfully, proportionately and within the scope of the clause, but removing these layers of procedural delay would ensure that our enforcement efforts are not undermined by red tape.
We cannot, on the one hand, claim to be taking a tough stance on illegal immigration and organised criminality and, on the other, design a framework that ties the hands of those trying to enforce the law. Amendment 91 works alongside our other amendments in this group to correct that imbalance. It would strengthen our operational capability while retaining the legal and ethical standards we rightly demand. I urge the Committee to support these amendments, and I beg to move.
Lord Katz (Lab)
I rise to speak to the amendments tabled by noble Lords on the Opposition Front Bench. As we have heard, Amendment 72 proposes to remove the requirement for an authorised officer to ensure that a person has not previously been searched using these powers. I respectfully but robustly oppose this proposed change. These are intrusive powers that allow for the physical searching of individuals who are not under arrest and could be victims or witnesses. To apply such powers multiple times to the same person without any procedural check not only is disproportionate but risks undermining public confidence in the fairness and proportionality of our system. We must remember that this safeguard was introduced for good reason. It was informed by lessons learned from previous misuse that led to legal challenge. Its inclusion has helped to address legitimate concerns about the potential for abuse of power.
Amendment 73 proposes removing the requirement that the relevant person must have been on the premises when, or immediately before, they were encountered by an authorised officer. We respectfully oppose this change. This safeguard is essential. It ensures that there is a clear and direct link between the individual suspected of possessing a relevant article and the premises being searched. Without it, the power becomes too broad, allowing searches of premises even when there is no reasonable basis to believe the person was ever present. The presence of the individual is often the only factual basis upon which an officer can form reasonable grounds to suspect that a device or article is located there. Removing this requirement risks turning suspicion into speculation.
Amendments 74, 78 and 91 propose removing the requirement for police constables and National Crime Agency officers to obtain authorisation from an inspector or equivalent grade before exercising powers under Clauses 20, 21 and 23. Furthermore, the amendments would remove the requirement that an inspector notifies a superintendent or equivalent grade as soon as reasonably practicable. We strongly oppose these proposed changes. These are significant intrusive powers, and the current authorisation process is not an administrative burden. Rather, it is a vital safeguard to ensure the powers are applied with proportionality, due process and respect to the legal system. It ensures that decisions to use the powers where we are obtaining personal data and privacy are subject to senior oversight and scrutiny, helping to prevent misuse and maintaining public confidence and trust in those who use the powers and in the Government.
Unlike immigration officers, who may use these powers more routinely, police and NCA officers may not exercise them as frequently. That makes the case for retaining oversight stronger, not weaker. Removing this safeguard risks inconsistent application of the powers and undermines the legal and ethical standards we have worked very hard to uphold. Again, we want the system that we are introducing to command confidence across all of society. That means that we have to balance powers given to the authorities with safeguards and proportionality. We must ensure that these powers are used lawfully, proportionately and effectively. Retaining the requirement for senior authorisation is an essential part of achieving that balance.
For those reasons, I urge the noble Lord, Lord Davies of Gower, to withdraw his amendment.
Lord Davies of Gower (Con)
My Lords, at the heart of this group of amendments lies the proposition that, if we are to confront the scale and complexity of illegal entry into this country, and indeed the criminal networks that are facilitating it, we must empower those on the front line to act swiftly, decisively and within a framework that reflects operational reality, not burdensome bureaucracy.
We on these Benches have listened carefully to what the Minister has said, but I am afraid that I have heard no compelling justification for why officers should be constrained to a single search, even in circumstances where new evidence arises, nor have we been given assurance that the narrow drafting of the premises clause will not impede investigations where criminal activity is thought to be located. I say to the Minister that those who orchestrate illegal crossings are not bound by procedure or protocol. Current legislation with regard to searches does not require such restrictions, so why should it apply here?
Under the current drafting of Clauses 20 to 23, the Bill proposes the imposition of a procedural bottleneck on our officers, who are working under pressure, often with incomplete information and in fast-moving, high-risk environments. We expect these officers to deliver results. Indeed, the Minister and his Government have staked a huge amount of political capital on these officers delivering results. Therefore, we need to make sure that we take decisions in this place so that those officers are equipped and empowered to get the job done.
These amendments would not lower standards; they would reduce delay and would not undermine safeguards. They would ensure that the law serves those it is meant to protect, not those who seek to exploit its gaps. If we are truly committed to securing our borders, upholding the rule of law and dismantling the infrastructure of exploitation that underpins these crossings, we must match the rhetoric with reality. These amendments certainly speak to our ambition, which is to give the officers the tools they need to do their jobs effectively.
Lord Hanson of Flint
“(8A) An NCA officer may exercise a power to search under this section only if the search is authorised by an NCA officer at or above a grade that is equivalent to the rank of inspector.(8B) If an NCA officer gives an authorisation under subsection (8A), the NCA officer must, as soon as it is practicable to do so, cause an NCA officer at or above a grade that is equivalent to the rank of superintendent to be informed.”Member's explanatory statement
This amendment provides for the authorisation by a senior National Crime Agency officer of a power to search under clause 20 exercised by a National Crime Agency officer.
Member's explanatory statement
This amendment enables a National Crime Agency officer to use reasonable force in the exercise of a power under clause 20.
“(10) Paragraphs 21 and 22 of Schedule 5 to the Crime and Courts Act 2013 (offences of resistance, wilful obstruction and assault) apply in relation to an NCA officer exercising a power under this section as they apply in relation to a designated officer acting in the exercise of an operational power within the meaning of that Schedule.”Member's explanatory statement
This amendment applies the offences of resisting, wilfully obstructing and assaulting an NCA officer to an NCA officer exercising a power under clause 20.
Lord Hanson of Flint
“(3A) An NCA officer may seize a relevant article under subsection (1) only if the seizure of the article is authorised by an NCA officer at or above a grade that is equivalent to the rank of inspector.(3B) If an NCA officer gives an authorisation under subsection (3A), the NCA officer must, as soon as it is practicable to do so, cause an NCA officer at or above a grade that is equivalent to the rank of superintendent to be informed.”Member's explanatory statement
This amendment provides for the authorisation by a senior National Crime Agency officer of a power to seize an article under clause 21(1) exercised by a National Crime Agency officer.
Member’s explanatory statement
This amendment enables a National Crime Agency officer to use reasonable force in seizing a relevant article under clause 21(1).
“(4A) Paragraphs 21 and 22 of Schedule 5 to the Crime and Courts Act 2013 (offences of resistance, wilful obstruction and assault) apply in relation to an NCA officer exercising a power under subsection (1) as they apply in relation to a designated officer acting in the exercise of an operational power within the meaning of that Schedule.”Member’s explanatory statement
This amendment applies the offences of resisting, wilfully obstructing and assaulting an NCA officer to an NCA officer exercising a power under clause 21(1).
Member's explanatory statement
This amendment and my amendment to Clause 21, page 15, line 12 enable an NCA officer to give a relevant article seized by an NCA officer to an immigration officer or the Secretary of State.
Member's explanatory statement
See the explanatory statement for my amendment to Clause 21, page 15, line 11.
Baroness May of Maidenhead
“(6A) A relevant article seized under subsection (1) or given under subsection (5) must be protected during the period it is retained so it can later be relied on by the owner of that article for evidence—(a) in court, or(b) as part of a National Referral Mechanism “Reasonable Grounds” determination.”Member’s explanatory statement
The amendment seeks to make provisions to protect the belongings of people who have had them confiscated, especially for potential victims of modern slavery who often vitally rely upon their belongings as evidence during the determination of their status as a victim.
Baroness May of Maidenhead (Con)
My Lords, in speaking to Amendment 84, I also wish to speak to Amendment 90. I do not wish to detain the Committee for long.
The principle—sorry, I am looking at the wrong Minister—behind these two amendments is the same as that behind Amendment 49: namely, the circumstances addressed in Clause 21 concern the search of a person and the circumstances addressed in Clause 23 concern the retention of material information that has been copied as a result of that search. In both those circumstances, the material should be so protected on its retention that it is available to the individual should they wish to use it in a court or particularly in a case before the national referral mechanism, so that anybody who is potentially in slavery has access to the information they need to be able to support their case.
The Minister, in responding to Amendment 49, referenced the Police and Criminal Evidence Act. I think he would accept that there have sometimes been incidents where the police’s retention of evidence has perhaps been less than perfect. Therefore, it would be helpful to put this requirement in relation to the retention of information, so that it can be used by potential victims of slavery in national referral mechanism cases, on the face of the Bill. I beg to move.
Baroness Hamwee (LD)
My Lords, having supported the noble Baroness on her previous amendments, from these Benches we do so on these, too.
Lord Davies of Gower (Con)
My Lords, I will speak briefly on Amendments 84 and 90, tabled by my noble friend Lady May of Maidenhead. These amendments raise a serious and important concern that we believe merits the attention of the Committee. It seeks to ensure that, where personal belongings are retained by the authorities under Clause 23, particularly in the case of potential victims of modern slavery, those items and the information they contain are preserved in a manner that allows them to be relied on as part of a national referral mechanism determination.
For many victims of trafficking, the evidence contained on a mobile phone or similar device may be the only proof they possess of their exploitation, whether that be messages, photographs or location data. To risk the loss, corruption or mishandling of that data would not only undermine the pursuit of justice but could place the individual concerned at even greater risk. We therefore support the principle behind this amendment. These protections are vital.
That said, we also recognise that many of these safeguards may already be provided for under the existing statutory framework, particularly under the Police and Criminal Evidence Act, which governs how evidence is secured and handled. But I accept what my noble friend said earlier about retention by police in some cases. If the Minister can offer the Committee reassurance that those protections already apply in the context of Clause 23 and that the rights of potential victims are adequately safeguarded in practice, that will be most welcome. This amendment raises a proper, necessary point of clarification and we hope the Government will respond accordingly.
Lord Katz (Lab)
My Lords, in addressing Amendments 84 and 90 proposed by the noble Baroness, Lady May of Maidenhead, I first take the opportunity to pay tribute to her work in this area, particularly as chair of the Global Commission on Modern Slavery and Human Trafficking, and indeed I acknowledge and pay tribute to her continued dedication to protecting vulnerable individuals. However, having said that—there is always a “however”—we feel that the amendments that she has tabled are not entirely necessary.
The amendments seek to introduce a statutory requirement to protect seized or surrendered items so they may later be used as evidence in court or in the national referral mechanism. Although obviously we agree with the intention behind them, we believe that they are unnecessary. The policy objective underpinning this measure is to ensure that the United Kingdom has the necessary powers to search for, seize, retain and use information from electronic devices belonging to irregular entrants or arrivals in relation to facilitation offences. These powers are vital to disrupting the operations of organised crime groups that exploit vulnerable individuals. It is essential that the focus of these powers is not changed and that authorised officers are fully equipped to use them effectively.
First, the current legislative framework already provides robust safeguards for the handling of personal property—notwithstanding the exchange with the Minister, my noble friend Lord Hanson, which I am afraid I was not in the Chamber for, on the operation of the Police and Criminal Evidence Act. The Bill ensures that any electronic devices seized are treated appropriately and that any data they contain is preserved and processed in accordance with data protection laws, evidentiary standards and human rights obligations.
Safeguards are particularly important in the context of modern slavery and human trafficking, where, as we have heard, victims may be in possession of devices that contain sensitive personal information, indeed evidence of exploitation, or communications with support services. The Bill ensures that such material is handled with care and integrity, protecting both the individual’s privacy and the integrity of any ongoing investigation.
We recognise the importance of timely access to personal devices, particularly for victims of modern slavery, who may rely on them for communication, evidence or support. If we are able to successfully download relevant data from a device, we will return the phone to the individual at the earliest opportunity. If the device is still required for the purposes of investigation, we will retain it for only as long as is reasonably necessary. If the device must be retained, we can provide the victim with any downloaded material they may need to support a national referral mechanism application or to access support services.
As I said, the Bill makes it clear that devices and other personal property will be retained only for as long as necessary. Once they are no longer required for the purpose for which they are seized. they must be returned to the individual as soon as is practicable. This approach, we feel, strikes the right balance between empowering law enforcement to act decisively against organised immigration crime and trafficking networks, while safeguarding the rights and dignity of individuals, particularly those who may be victims of modern slavery. Given that, I respectfully ask the noble Baroness to withdraw her amendment.
Baroness May of Maidenhead (Con)
My Lords, I am not at all surprised by the response the Minister has given me. I continue to be concerned to make sure that people have access to this information and these articles for their national referral mechanism cases to be considered. I will reflect further on what the Minister has said, and I beg leave to withdraw the amendment.
Lord Hanson of Flint
Member's explanatory statement
This amendment is consequential on my amendment to Clause 21, page 15, line 40.
Member's explanatory statement
This amendment is consequential on my amendment to Clause 21, page 15, line 40 and on the extension of clause 21 to National Crime Agency officers.
Member's explanatory statement
This amendment is consequential on the extension of clause 21 to National Crime Agency officers.
Member's explanatory statement
This amendment is consequential on the extension of clause 21 to National Crime Agency officers.
“(11) If the relevant article is in the possession of a constable of the Police Service of Scotland, it must be disposed of in accordance with Part 6 of the Civic Government (Scotland) Act 1982 as if—(a) it were property that has been delivered to a constable under section 67 of that Act, and(b) it were delivered to a constable on the date when subsection (6)(a) of this section ceased to apply to it.(12) In the application of Part 6 of that Act in relation to a relevant article by virtue of subsection (11), references in that Part to action which may or must be taken in relation to the finder of property are to be disregarded.(13) If the relevant article is in the possession of a constable of the Police Service of Northern Ireland, it must be disposed of in accordance with section 31 of the Police (Northern Ireland) Act 1998, and any regulations under that section, as if it were property that has come into the possession of the constable in connection with the investigation of a suspected offence.”Member's explanatory statement
This amendment makes provision about the disposal of a relevant article that is in the possession of a constable of the Police Service of Scotland or a constable of the Police Service of Northern Ireland.
Lord Hanson of Flint
“(4) An NCA officer may access, examine, copy, retain or use information under subsection (1) only if the accessing, examination, copying, retention or use of the information is authorised by an NCA officer of a grade that is equivalent to the rank of inspector or above.(5) If an NCA officer gives an authorisation under subsection (4), the NCA officer must, as soon as it is practicable to do so, cause an NCA officer of a grade that is equivalent to the rank of superintendent or above to be informed.”Member's explanatory statement
This amendment provides for the authorisation by a senior National Crime Agency officer of a power under clause 23(1) to access etc information on a relevant article exercised by a National Crime Agency officer.
Lord Hanson of Flint
Member's explanatory statement
This amendment is consequential on my amendment to Clause 21, page 15, line 40.
Lord Hanson of Flint
““NCA officer” means National Crime Agency officer;”Member's explanatory statement
This amendment inserts a definition of “NCA officer” into clause 26 for the purposes of clauses 19 to 23.