Nationality and Borders Bill

Baroness Lister of Burtersett Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[Baroness Ludford (LD)]

But that is why we need family reunion routes.

[Baroness Lister of Burtersett (Lab)]

Can I just point out that the Refugee Council, for example, has made the point that cutting back and restricting family reunion rights, which the Bill will do—this is one of the key safe and legal routes—will particularly affect women and children? Plenty has been written about what safe and legal routes might look like—it is family reunion; it is humanitarian visas. Is the noble Lord really suggesting that we have no responsibility to the kind of people that my noble friend talked about? No one is suggesting that everyone comes over here, but much poorer countries than this country are taking responsibility for asylum seekers, and we will not take any responsibility.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I listened carefully to the noble Baroness, Lady Ludford, and she quite rightly reminded the House that we are talking about asylum seekers. I have to say that, after that, our paths diverged quite considerably.

In listening to a debate covering 16 amendments and a clause stand part, I discerned three angles. The first, what I might call the ultras, led by the noble Lord, Lord Kerr, want to remove the clause completely. The second angle is to take the clause to pieces, as in the amendments from my noble friend Lady McIntosh, moved by the noble Lord, Lord Griffiths of Burry Port. Thirdly, there are the other amendments, described by, I think, the noble Baroness, Lady Hamwee, as picking at the scab. If you leave aside the point that the clause should not exist and take the other two, the inevitable result is that what we are doing, maybe imperceptibly, is widening the opportunity for asylum seekers to come to this country. How many and whether it is a good or a bad thing can be debated, but that is going to happen if we accept the amendments put forward in this group.

That, in turn, raises a couple of issues for me about fairness. First, there is fairness to those who have so far followed the scheme for tier 1 and are therefore going to find their position disadvantaged by the arrival of more people who would otherwise have been in tier 2. Once that thread is broken and the rules become more judgmental, then there are obviously issues of fairness for those who have the clearest position.

The second question of fairness is about the contract with the British public. In the debate on Clause 9 at the last meeting of the Committee, I discussed the nature of what I call “informed consent”. I described it as a concept that Peter Bauer had expressed to me half a century ago in a debate at my business school. Here, I touch very much on the point made by my noble and learned friend Lord Clarke, and the noble Baroness, Lady Fox. There is a question of informed consent. The informed consent is not absolute; it is conditional. One of the reasons I think we have had reasonably satisfactory race relations so far is the point made by my noble and learned friend Lord Clarke that the public have felt, though stretched, often badly stretched, their consent is still there. But, as I say, it is not absolute and we need to make sure that the British public is able to see rules that are clear, unequivocal and comprehensible in their impact on them, their families, their communities and the society in which they live. The more complex the rules become, the greater the chances of cases emerging that will endanger and maybe break that informed consent.

My second point of concern about this is what I call “foreign shopping”. For a number of years I was a trustee of a charity called Fair Trials International—the name is self-explanatory—which does excellent work in many areas but in particular as regards extradition. We came across the extremely unattractive practice of people seeking extradition going round looking for the best jurisdiction, the best legal system or the best court to enable them to be successful. I think we have to be very careful to ensure that similar practices, which may already exist now, do not grow further as regards asylum seekers.

Again, my noble and learned friend Lord Clarke referred to it. He said, “If I was in Nigeria with my noble friend Lord Horam and we were deciding we were a couple of likely lads and we thought the future looked better outside Nigeria, we would look around at all the jurisdictions that might offer us the best prospects.” Now, I think the United Kingdom is an extremely attractive place to go to. We have had a long debate tonight and I am not going to go through the reasons why I think it is. They include a series of things, not least that people can see that the Parliament of the United Kingdom spends time talking and thinking about it and is concerned about it. What better way to try and find your way into a country that has the interest and the focus to make sure that even the lowest person is looked after and their rights are protected?

When my noble friend the Minister comes to wind up, I hope she will be able to say that the Government are going to look very carefully at the impact of more asylum seekers of variable abilities, perhaps—more people who may risk breaking the informed consent of the British people. For all these reasons, we need to be very careful before we widen the aperture and widen the opportunities any further than proposed in the Bill as presently drafted.

[Baroness Lister of Burtersett (Lab)]

My Lords, I oppose Clause 11 and simply want to pose four questions, the answers to which I hope might help clarify the mind of the noble and learned Lord, Lord Clarke of Nottingham—my home city.

First, how is it possible to decide a priori whether someone is an economic migrant or a refugee on the basis of how they arrive in the country? It appears to be a key assumption on which Clause 11 and much of the Bill is based. The evidence—in particular the Refugee Council’s analysis of channel crossings—shows that most of those crossing the channel irregularly, and therefore deemed illegal, are likely to be recognised as in need of refugee protection. That does not support the assumption.

I recently met virtually with members of the Baobab Centre for Young Survivors in Exile and was told that, in their 32 years of work, they had never met an unaccompanied young person who had arrived by a safe and legal route, yet all had been fleeing danger, with many having seen family members killed and many traumatised. A constant refrain among the young survivors themselves was that they wished Ministers would put themselves in their shoes—a refrain we have heard before this evening—and that they felt the proposed policy was based on a lack of compassion and trust.

Secondly, what assessment has been made of the likely impact on integration—an issue raised by the noble Baroness, Lady Ludford, which Ministers claim is still a goal—of creating a second-class group of refugees with no security and only very limited rights?

Thirdly, what assessment has been made of the case made by a number of organisations, including the UNHCR, that placing restrictions on the right to family reunion for this group will, in the words of the Refugee Council, “all but destroy” the

“main safe route out of conflict for women and children at risk”.

Fourthly, and finally, why should we accept the Government’s interpretation of the refugee convention over that of the body with global supervisory responsibility for it? The UNHCR has provided detailed legal observations in support of its claims that the Bill is

“fundamentally at odds with … the United Kingdom’s international obligations under the Refugee Convention”.

Likewise, Freedom from Torture has published a joint legal opinion from three chambers which states that

“this Bill represents the biggest legal assault on international refugee law ever seen in the UK”

and

“is wrong as a matter of international refugee law.”

To my knowledge, the Government have not published the legal advice on which their claims that Clause 11 is compatible with international law are based. Will they now do so, particularly in light of the very important speech from the noble and learned Lord, Lord Brown?

[Lord Green of Deddington (CB)]

My Lords, I shall be extremely brief; this has been a long debate. I just want to commend the noble Lords, Lord Horam and Lord Hodgson, and the noble Baroness, Lady Fox. They all pointed out the need to take full account and understanding of public opinion. I agree with that; I do not need to repeat it. As for Clause 11, it is clearly a legal problem. I suspect that it will also be a policy problem, but we will come to that later.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I hope that, through the course of my response here, I will lay out the rationale for why we are doing what we are doing. We disagree with the UNHCR and we feel that, as a sovereign nation, it is up to us to interpret the 1951 convention.

[Baroness Lister of Burtersett (Lab)]

If the Government’s argument is to be that they have a different interpretation, it is not clear why we should accept their interpretation over the UNHCR’s interpretation. I asked if the Government would publish the legal advice on which their interpretation rested. Then we can judge against other interpretations.

[Baroness Williams of Trafford (Con)]

I think the noble Baroness knows that we do not do that. I am not going to commit to publishing the legal advice. I am, however, going to come to her questions later if the Committee will be patient.

Can I get on now to pull factors? They are complex, but it is reductive to claim that asylum seekers do not ever make decisions about their destination based on policy calculations. They are like the rest of us; they do not simply respond to one or two factors such as family or language in making a choice. Many more factors come into play in this respect, as my noble friend Lord Hodgson of Astley Abbotts mentioned, and one of those will very naturally concern how to rebuild the life they lost after being forced to flee their country of origin. But to defend the first safe country principle for the reasons I have set out, we must do everything we can to deter dangerous secondary movements from countries that are already safe and provide perfectly good means for a flourishing life.

Noble Lords have mentioned Denmark, Australia and Japan. We have seen large reductions in spontaneous intake in both Denmark and Australia, following similar approaches to that which we intend to take. In fact, Australia resettles the single largest number of refugees in the world.

--- Later in debate ---

[Baroness Ludford (LD)]

Before the noble Baroness responds, I add that I do not think that the noble Lord, Lord Rosser, is confused: I fear that the Minister is being mildly disingenuous with us. Can she confirm that there is a difference in the intended treatment of group 1 and group 2 refugees as concerns family reunion? Otherwise, what is the point of Clause 11(6):

“The Secretary of State or an immigration officer may … treat the family members of Group 1 and Group 2 refugees differently, for example in respect of … whether to give the person leave to enter or remain”


et cetera? What is the point of this being in the Bill if there is no intention to treat group 2 refugees differently? The Minister told us about how this will not breach the refugee convention and so on. I asked specifically about the comments on Article 8, and I look forward to her replying specifically on that. But can she confirm whether their intention is to treat group 1 and group 2 refugees differently in terms of rights to family reunion?

[Baroness Lister of Burtersett (Lab)]

May I just add to that? Clause 11(5) says:

“The Secretary of State or an immigration officer may treat Group 1 and Group 2 refugees differently, for example in respect of … whether leave to enter or remain is given to members of the refugee’s family.”

Nationality and Borders Bill

Baroness Lister of Burtersett Excerpts

Lords Hansard - Part 2 & Committee stage
Tuesday 1st February 2022 Lords Chamber

Moved by

[Baroness Lister of Burtersett]

40: Clause 11, page 13, line 44, at end insert—
“(2A) For the purposes of subsection (2)(b), the following will be regarded as having presented themselves “without delay”— (a) people who have experienced sexual violence;(b) people who have made a protection or human rights claim on the basis of gender-based violence;(c) people who have made a protection or human rights claim on the basis of sexual orientation, gender identity, gender expression or sex characteristics;(d) people who are a victim of modern slavery or trafficking;(e) people who are a victim of torture;(f) people who are suffering from a mental impairment;(g) people who are suffering from a serious physical disability;(h) people who are suffering from other serious physical health conditions or illnesses;(i) people who were under 18 years of age at the time of their arrival in the United Kingdom.”Member’s explanatory statement
This probing amendment seeks to ascertain whether and to what extent certain vulnerable groups would be covered by the “without delay” condition.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am grateful to the noble Baroness, Lady Neuberger, and my noble friend Lord Cashman for their support and for hanging on in there, as well as to Women for Refugee Women for its help with the amendment. The amendment sets out a number of groups in vulnerable circumstances who should be deemed to meet the condition that they have presented themselves to the authorities to claim asylum without delay. This is a probing amendment, which does not imply acceptance of Clause 11, which, as I made clear earlier, I totally oppose; rather, it addresses one specific aspect of it that was not interrogated in the Commons.

As the UNHCR advises:

“There is nothing in the Refugee Convention that defines a refugee or their entitlements under it according to … the timing of their asylum claim.”


At present, the Bill does not provide any exceptions to the “without delay” condition relating to their potential vulnerability, although, if I understood her correctly, I think the Minister said on Amendment 39 that there is some flexibility, so I look forward to hearing more about that.

The amendment covers a range of groups who could be adversely affected by the clause. It reflects a warning made by Freedom from Torture that:

“Penalising refugees who do not present their claim ‘without delay’ following arrival risks further punishing the most vulnerable. It is clinically recognised that an experience of torture or trauma will lead to avoidance behaviours and interfere with the person’s ability to disclose.”


I shall focus mainly on women fleeing gender-based violence. The “without delay” condition is one of a number of provisions that will, contrary to ministerial claims, disproportionately adversely affect women, as more than 50 organisations warned the Home Secretary in a letter in which they argued that more women will be wrongly refused asylum, re-traumatised and placed at risk of violence and abuse. LGBTQ+ asylum seekers will also be at particular risk as a result of the “without delay” condition. I think my noble friend is going to say more about that.

Women for Refugee Women’s research has documented how many women seeking asylum in the UK have fled gender-based violence in their countries of origin, including rape, female genital mutilation and forced prostitution. Many were abused again on their journeys to safety. In the organisation’s experience, many of these women are heavily traumatised when they arrive and need time to feel safe before they feel able to share their experiences with a government official. This is endorsed in a legal opinion from Garden Court Chambers, which states:

“there may well be very good reasons to explain why … their claim was delayed … which relates to the particular forms of persecution to which women are subject, and their experience of gender-based violence and inferior social status.”

British Red Cross research published just last week reinforces the point and demonstrates how insensitive the asylum system already is to gender-related trauma and women’s needs. The Bill will only make this worse. In Women for Refugee Women’s experience, survivors, many of whom have experienced serious trauma, move at their own pace with regard to disclosure. No amount of legal or mental health support can guarantee a willingness to disclose without delay.

Preliminary findings from research into LGBT+ women carried out by Rainbow Sisters, a group supported by Women for Refugee Women, found that 20 out of 25 women did not claim asylum within the first month of entering the UK. The great majority of those who gave reasons said they were too traumatised by past experiences of persecution or scared to come forward, and many had not even realised that they could claim asylum on the basis of their sexual orientation.

The Home Office is well aware of such barriers to disclosure, because it acknowledges them in its own current guidance, which gives a number of reasons for reluctance to disclose information at the outset, including

“feelings of guilt, shame, and concerns about family ‘honour’, or fear of family members or traffickers, or having been conditioned or threatened by them.”

It notes the impact sexual assault can have on the ability to present one’s case. The same policy guidance says that late disclosure should not automatically prejudice a woman’s credibility.

The same considerations apply to failure to present oneself without delay. So, why does the Bill not reflect this clearly? On Second Reading, the Minister acknowledged these arguments in relation to the provision of late evidence, saying:

“We will set out in guidance what can constitute good reasons”—[Official Report, 5/1/22; col. 668.]


for late evidence. But no provision seems to have been made for good reasons for failing the “without delay” condition. Why is that? I know the “without delay” phrase is carefully taken from the convention—an example of what the UNHCR calls “selective echoes” from it—but that does not obviate the point. So, do the Government intend to protect the groups covered by the amendment in the guidance?

Can the Minister also provide some information about statistics, if necessary, in a subsequent letter? First, do the Government collect statistics on the number of women who claim asylum based on sexual or gender-based violence in their country of origin? If yes, what proportion of overall claims did these represent? Secondly, do they collect statistics on when survivors of gender-based violence make an asylum application? If yes, what do those statistics show? Thirdly, do they collect statistics on the number of women subject to sexual abuse on their journeys to the UK? Again, if so, what do they show?

I hope the Minister will be able to provide some clarity and, better still, an assurance that the “without delay” condition will be applied in a way that does not impact adversely on those in vulnerable circumstances—if Clause 11 survives. I beg to move.

[Baroness Neuberger (CB)]

My Lords, I rise to support the amendment in the name of the noble Baroness, Lady Lister of Burtersett, supported by the noble Lord, Lord Cashman. I would have said almost everything the noble Baroness has said, so I will just add a few other points.

One is that we have to recognise the nature of asylum seekers arriving in the country and the evidence presented by Doctors of the World and others. Asylum seekers often arrive suffering from considerable ill health. It is important we realise that, because that makes them the sort of people who ought to be included in the list provided in the amendment. According to Doctors of the World’s experience of running a clinic, 70% of patients with an outstanding asylum claim have at least one chronic medical condition, 30% have a psychological condition, almost a quarter present with an acute condition, and over 40% report their health as being “bad” or “very bad”. These are therefore people whom one might class as vulnerable, and this is the issue we are probing. Like my noble friend Lord Kerr, I am a bit worried about lipstick on pigs. Nevertheless, I think we will need to tease this out a little more, and we know the health conditions of asylum seekers are considerably worse than those of the general population.

I also want to pick up on what the noble Lord, Lord Coaker, said about the piece in the Times, which I also saw, and I want to reflect on some personal experience. We run a very small charity in memory of my parents. My mother was an asylum seeker, a refugee from Nazi Germany, and in my parents’ name we run this small charity to provide opportunities for education for asylum seekers who are not entitled to get student finance. I have therefore interviewed, over the last 20 years, quite a large number of asylum seekers, the majority of whom have been young men.

Without exception, they report being traumatised. They do not come as dangerous would-be criminals; they have seen their parents be killed before their eyes, have been forced into armies of appalling dictatorships, have been involved in civil wars and have been persecuted because they are bisexual—whatever it may be. None of them come and apply for a scholarship in the first period after they arrive in this country. We probably do not see them until a year, 18 months or two years in, and only then are they beginning to be able to talk about their experiences. Therefore, because they are clearly vulnerable, would they be classed as people who could be regarded as making an application “without delay”?

The Home Office’s guidance on gender-based violence and women who have suffered that kind of issue being treated favourably, if you like, and being allowed to wait until they are able to speak out is moderately generous—perhaps I would not go that far but would just say “possibly” generous, but whatever. I want to know whether we can extend that principle to those who have been traumatised in all sorts of other ways and have major mental health issues, often brought on by the trauma of what they have experienced.

Would the Minister be willing to entertain the prospect of those who are vulnerable for a whole variety of reasons being treated in the same way, if you like, as the Home Office guidance? We cannot see it within the Bill, but it would be wonderful if that were the case.

--- Later in debate ---

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords who have spoken in this debate for what have been very thoughtful contributions. I will directly address the question that the noble Lord asked me in the previous group about locking single males up. I have not seen the Times article. If he will allow me, I will look at it and respond in due course.

Although the policy is intended to deter dangerous journeys and encourage people to claim asylum in the first safe country, I assure noble Lords that we have been very careful to strike the right balance between how the policy achieves its aim and protecting the most vulnerable, which is what noble Lords have spoken about this evening. Before I explain why I think statutory exemptions are probably not needed, I will offer a few thoughts in relation to how the “without delay” element of Clause 11 is anticipated to operate.

There are two broad categories under which I envisage the exercise of discretion is most likely to be appropriate. The first is where a person finds themselves unable or unwilling to present themselves to the authorities for any reason that pertains to their proposed asylum claim. In such instances, there will need to be very careful consideration of whether it was reasonably practicable for that person to have claimed without delay. For example, if they had been tortured—noble Lords have given this sort of example—suffered sexual violence at the hands of state authorities or, indeed, feared admitting their sexual orientation due to state persecution on those grounds, this sort of situation would trigger very careful consideration.

The second category is where a person was simply not in control of their actions. In such circumstances, we would also be very careful to consider the facts of that case when determining whether it was reasonably practicable for that person to have claimed without delay. I think primarily of victims of human trafficking, unaccompanied children, and those suffering serious physical or mental disabilities.

The noble Baroness, Lady Lister, asked about statistics. I do not have them to hand, but I will try to get them.

On the guidance and training, one of the things that I looked into in great detail way back, when we talked about LGBT people in the detention estate, was how practitioners went about establishing claims made on the basis of a person’s sexual orientation. It is fair to say that, back in the day, “clunking” would probably have been a charitable word to use—some of the ways people were questioned were on the verge of being inhumane. We really went to extraordinary lengths to try to change that and make it a much more humane process. It is now about establishing the reasons why someone is making a claim, not proving it, so our policies and training are now designed to support claimants in being able to explain their claim in a very sensitive and safe environment. Our approach, I can confirm, is trauma informed.

Our guidance on sexual orientation and gender identity, as I said previously, was developed to take these issues into account—UNHCR, Stonewall and Rainbow Migration contributed to its development—and we will review and update our training and guidance where necessary to support people who are LGBT+. I confirm again that this will take people’s experiences into account, including the trauma that they have suffered. I thank those organisations, particularly Stonewall, Rainbow Migration and UNHCR, that have helped to make the process far more humane so that people’s very difficult journeys and experiences are eased somewhat by our attitude and approach.

[Baroness Lister of Burtersett (Lab)]

I thank noble Lords very much for their support for this amendment—their willingness to apply some lipstick to the pig that I think we would all like to be rid of. Some very powerful speeches made the case very strongly for why the groups which are listed may well have good reasons for delay. I take the point that any asylum seeker is, by definition, likely to be vulnerable, but we are talking here about those who have particular vulnerabilities.

I thank the Minister for giving more of a sense of what will happen. It is late and I need to read what she said, but I think that the powerful speeches from noble Lords and the Minister’s response justified our taking this as a separate amendment. As I have said, it was not interrogated in the Commons; this has given us a chance to do that.

I thank the Minister for saying that she will look into the statistics—it was I, in fact, who raised it; I think Women for Refugee Women would value having whatever statistics are available. However, just last week, the British Red Cross produced research suggesting that, for all the better training and guidance, women asylum seekers are still treated very badly, with a lack of gender sensitivity and trauma sensitivity. I would encourage the Minister to read this research, think about it and see what more needs to be done.

[Baroness Hamwee (LD)]

I apologise—I was not quick enough to my feet. I wanted to get in before the noble Baroness withdrew her amendment to ask the Minister if she might be able, after today if not tonight, to answer my question about how Clauses 11 and 36 work together. That could inform our debate when we get to that later clause. Again, I apologise to the noble Baroness.

[Baroness Lister of Burtersett (Lab)]

There is no need—I am glad that the noble Baroness said that. I had made a note to mention it and then, of course, completely forgot or could not read my handwriting, or both. Anyway, it is late, and I realise that people want to get on. I beg leave to withdraw the amendment.

Amendment 40 withdrawn.

--- Later in debate ---

Moved by

[Baroness Lister of Burtersett]

46: Clause 11, page 14, line 13, leave out paragraph (c)
Member’s explanatory statement
This probing amendment, along with another amendment to Clause 11, would amend the list of examples of ways in which refugees, or their family members, can be treated differently depending on whether they are in Group 1 or Group 2 by removing reference to the attachment of no recourse to public funds requirements so as to probe when this requirement would be attached.

[Baroness Lister of Burtersett (Lab)]

My Lords, it is me again, I am afraid. I rise to move Amendment 46, and I am grateful to the noble Baronesses, Lady Jones of Moulsecoomb and Lady Stroud, my noble friend Lord Blunkett—who had to leave—and the British Red Cross and Praxis for their support.

Again, this is a probing amendment. Together with Amendment 54, it would delete reference to the “no recourse to public funds” condition from the listed ways in which group 1 and group 2 refugees and their families could be treated differently under Clause 11. In other words, it would remove one source of potential discrimination from the list of examples of the discriminatory treatment of group 2 refugees. It is a probing amendment because while I am totally opposed to Clause 11 standing part of the Bill, it is important that we have more information about how the “no recourse to public funds” condition will be applied.

In fact, questioning the application of the no recourse condition reinforces the case against Clause 11. UNHCR makes it clear that denying refugees recourse to public funds is a clear violation of Article 23 of the refugee convention, which states in unambiguous terms:

“The Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.”


Given that Ministers constantly claim that the Bill is compatible with our international obligations, does the Minister believe that UNHCR is wrong, and if so, on what grounds?

Similarly, the JCHR points to a violation of Article 24 of the convention, which specifically cites the right to social security. It argues that the differentiation policy, including specifically restrictions on recourse to public funds

“raises serious questions of compatibility with Article 14 ECHR—the prohibition on discrimination in the enjoyment of other Convention rights.”

It concludes that the policy is

“arguably disproportionate to achieving the stated aims.”

In fact, as the committee notes, the aim of dissuading asylum seekers from travelling to the UK other than by safe and legal routes ignores all the research, including that of the Home Office, which indicates that it is rare for asylum seekers to know what support is available.

To repeat something that my noble friend Lord Rosser said, UNHCR warns:

“The adverse consequences of a ‘No Recourse to Public Funds’ condition will fall not only the refugees themselves, but also on their families, including on any children who travel with them, are able to join them later, or are born in the UK. These consequences have been documented in numerous studies as well as in the context of litigation. They include difficulty accessing shelters for victims of domestic violence, denial of free school meals where these are linked to the parents’ benefit entitlement”—


—although this is currently suspended, and a very long review is taking place; this policy has been under review for 15 months now—

“and de facto exclusion from the job market for single parents (largely women) who have limited access to government-subsidised childcare, as well as significant risks of food poverty, severe debt, sub-standard accommodation, and homelessness.”

It also notes that public funds include payments specifically for children, such as child benefit, and for those in particularly vulnerable circumstances, such as carers and disabled people. It warns of the adverse consequences for integration and for local authorities which may have to pick up some of the tab for children and those with care needs.

Its conclusions chime with evidence from a range of organisations, including a recent Citizens Advice survey that documents the severe poverty and destitution caused by the rule, with children, women and people of colour disproportionately affected and with what it describes as a “devastating impact” on mental health. Likewise, the BMA has raised concerns that the rule’s effects can compound physical or mental health conditions among those with particular vulnerabilities fleeing violence or trauma.

There are real fears now that the Bill will increase significantly the numbers affected by the “no recourse” rule. There is also a lack of clarity as to whom among group 2 refugees it will be applied, both in the short term and each time their status comes up for renewal. I hope that the Minister will provide some clarity and not fob us off with the response that details will be set out in the guidance and rules that follow, as was said in the Commons.

What was made clear in the Commons was that those already in receipt of Section 95 asylum support will not face restrictions on access to public funds. However, this is not made clear in the Bill itself. Can we be confident that most asylum seekers will have been in receipt of Section 95 asylum support? What about those refugees who face destitution but were not receiving Home Office support, such as those who choose not to enter the asylum support system and rely instead on informal networks of support because of accommodation being allocated on a no-choice basis? What about those who fall into destitution after being granted refugee status, which will be a greater risk as a result of this clause?

It is currently difficult to get the “no recourse” rule lifted on the grounds of destitution because the concession applies only to a minority of those affected and involves a difficult, complicated process. Citizens Advice warns that

“in our experience these limited exemptions for destitution give too little help too late”,

with a decision typically taking more than four weeks, according to the Minister in the Commons. Can the Minister tell us who exactly among group 2 refugees will in practice not be subject to the “no recourse to public funds” rule? What is the Government’s estimate of the proportion of group 2 refugees who will be subject to it? What will happen when their status is up for renewal? Will the destitution exception be open to any group 2 refugee or only to certain groups, as is the case now? Will access to the concession be made easier than it is currently?

In recent oral evidence on the “no recourse” rule to the Work and Pensions Committee, the Minister, Tom Pursglove, refused to answer questions about the Bill’s implications, stating that policy work is ongoing. This elicited the response from the committee chair that, given that the Bill had already completed its passage through the Commons, surely we ought to know what its implications are—indeed. Surely by now the Home Office should be able to answer what are some pretty basic questions about how Clause 11(5)(c) and (6)(d) will work. It is crucial that we have this information should Clause 11 continue to stand part of the Bill, although I fervently hope that it will not, not only because it contravenes the refugee convention but also because it will spell hardship and insecurity for many group 2 refugees—who will be very much class 2 refugees. I beg to move.

[Baroness Stroud (Con)]

My Lords, I want to take the opportunity afforded by Amendments 46 and 54 in the name of the noble Baroness, Lady Lister, to which I was pleased to add my name, to probe the Government’s exact intention regarding the outworking of Clause 10 and the application of NRPF.

I have long been concerned about the NRPF policy, but I have profound concerns about its application to group 2 refugees. According to the Home Office’s own guidance, the NRPF condition must not be applied in circumstances where a person is destitute or at risk of becoming so. Can the Minister confirm that this understanding is correct, or would group 2 refugees not be able to receive asylum support and be subject to NRPF? Can the Minister also clarify what would happen should such a person qualify for the destitution test?

There are a number of areas where I would encourage the Minister to consider the impact of applying NRPF to group 2 refugees. I know that Members of this House would be happy to work with her if that is helpful. First, on the impact on local authorities, if the NRPF condition is extended to refugees subject to the new temporary protection status, the increase in the number of individuals subject to NRPF would increase the pressure on already overstretched local authorities. Such increased pressure could lead to more families with NRPF being wrongly refused assistance by local authorities. This would have a devastating impact on the health and development of children in these families and would counter any efforts to develop integration. In addition, it would affect already vulnerable families who have the same characteristics as those who are permitted to access public funds. This is an area of concern to me: they have just arrived here via different routes, but there is no difference in their vulnerability.

Imposing an NRPF condition will cause refugees to live without access to welfare benefits and housing support. When we are considering NRPF, we often think of out-of-work benefits, but this also affects in-work benefits. You could have the extraordinary circumstance of two auxiliaries working in a hospital, one being able to claim in-work support, and the other not. He or she would not be able to survive in those circumstances, even if they were doing everything right. There is also evidence from those already subject to the NRPF condition that this restriction can cause destitution and lead children to experience homelessness, hunger and mental health conditions.

If, as seems to be the case, group 2 refugees would be subject to NRPF, this policy may not achieve its intent. I would value the Minister setting out the exact policy intent of NRPF, as I have found it hard to find what the intent of no recourse to public funds is.

My work as chair of the Social Metrics Commission, a cross-party commission which measures poverty in the UK, finds that no recourse to public funds is a significant cause in driving poverty, homelessness and destitution. NRPF has been shown to have significant mental health consequences, including for children. It makes finding stable work more difficult, accessing education harder, and securing stable housing a challenge. These are all things we want to see for this community of people.

It is important for us to really understand who we are talking about. We are not talking here about asylum seekers or economic migrants. We are talking about people the Government recognise as bona fide refugees—that has already been decided—who have fled conflict, war or famine and arrived in Britain hoping to find a place of refuge. By tabling this probing amendment, I want to ensure that, purely by virtue of the route by which refugees arrive here, they will not be subject to profound insecurity, at a time when we are committed to ending rough sleeping, levelling up the UK and defining the character of the nation we want to be.

As this is a probing amendment, I ask the Minister to clarify whether group 2 refugees would or would not be able to receive asylum support. Would they be subject to NRPF, even when qualifying for a destitution test? If so, what is the exact policy intent of NRPF for this group of people? How would group 2 refugees have been provided for during Covid, when they would not have had access to furlough or universal credit? Finally, in what way is the Government’s commitment to ending rough sleeping, and NRPF for group 2, compatible?

--- Later in debate ---

[Lord Hunt of Wirral (Con)]

As with all questions affecting our colleagues in France, it is very difficult to answer that.

[Baroness Lister of Burtersett (Lab)]

My Lords, what evidence are the French basing this view on? The academic evidence that I am aware of, and certainly the evidence that the JCHR draws attention to, does not support the view that public funds, or welfare more widely, somehow acts as a pull factor. The pull factors were set out by the noble Baroness, Lady Stroud —family commitments, language and so on—and the evidence shows that the push factors are much more important. I would be very interested to know what evidence the French base this on because it may well be just reading our newspapers, which is probably not very good evidence.

[Lord Hunt of Wirral (Con)]

Would the noble Baroness, Lady Lister, please ask the French?

--- Later in debate ---

[Baroness Williams of Trafford]

It might be helpful to the noble Lord if I outlined situations in which it might be applied, as opposed to putting them in the Bill. I am very happy to go away and look at that and write to him with some examples of where it might be applied—I get his point on that.

[Baroness Lister of Burtersett (Lab)]

I thank all noble Lords who have spoken. There have been some very powerful arguments for the amendment. I am particularly grateful to the noble Baroness, Lady Stroud: she put it better than anyone else could, drawing on her knowledge of these issues. I thank the Minister but I must say that I am disappointed. The whole point of the amendment was to try to get a bit of clarity—my noble friend Lord Rosser has been trying, without success—but, to be honest, I am none the wiser now than I was at the beginning as to who will and will not be subject to the “no recourse to public funds” rule.

The noble Baroness, Lady Stroud, made the point that discretion involves subjective judgment. I have been involved in social security for a long time. There was a reason why we reduced the element of discretion in it: because subjective judgment may be used in ways that we do not feel very happy with. It can be negative as well as positive. All that we know about the culture of disbelief in the Home Office, the refugee system and so on does not fill me with great hope.

I am glad that the Minister said that she will write to my noble friend; I hope that she will copy it to everyone who has taken part in this debate. I hope that she will look at Hansard and the questions I asked to see whether she can answer some of them. If she cannot, it suggests that, as my noble friend said, this has been put in the Bill without a clue as to what it will actually be used for—and that is not good.

[Lord Paddick (LD)]

I am sorry to intervene, but will the Minister include in the letter to noble Lords how this measure, which will be broad and flexible—I think that is what she said—and at the discretion of the Home Office, will amount to a deterrent?

--- Later in debate ---

[Baroness Lister of Burtersett (Lab)]

That is a very good question, but it has taken away my train of thought. What I wanted to say was that this really is not good lawmaking. The noble Baroness, Lady Ludford, quoted the Migration Advisory Committee, which I was planning to quote as well in relation to the right to work, and pointed out that it is not good policy-making not to provide evidence. The Minister said she disagreed, but I hope she did not disagree with the fact that one should provide evidence for policy, which is what I challenged the noble Lord, Lord Hunt, about. I would be very interested to see this evidence the French are using. I do not think it exists.

Anyway, it is late. I am disappointed, because I am none the wiser as to how this potentially very dangerous power, which could cause immense hardship if we are not careful, is going to be used. But I hope that the Minister’s letter will show some clarity about how the Government are thinking about how they plan to use this power. With that, I beg leave to withdraw the amendment.

Amendment 46 withdrawn.

Nationality and Borders Bill

Baroness Lister of Burtersett Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 27th January 2022 Lords Chamber

Moved by

[Baroness Lister of Burtersett]

11: After Clause 4, insert the following new Clause—
“Provision for Chagos Islanders to acquire British nationality
(1) Part 2 of the British Nationality Act 1981 (British overseas territories citizenship) is amended as follows.(2) After section 17H (as inserted by section 7), insert— “17I Acquisition by registration: descendants of those born in British Indian Ocean Territory(1) A person is entitled to be registered as a British overseas territories citizen on an application made under this section if they are a direct descendant of a person (“P”) who was a citizen of the United Kingdom and Colonies by virtue of P’s birth in the British Indian Ocean Territory or, prior to 8 November 1965, in those islands designated as the British Indian Ocean Territory on that date.(2) An application under this section must be made before the date specified in subsection (3).(3) The specified date means—(a) in the case of a person aged 18 years or over on the date of coming into force of this section, five years after the date of coming into force of this section, or(b) in the case of a person under the age of 18 years on the date of coming into force of this section, before they reach the age of 23 years.(4) A person who is being registered as a British overseas territories citizen under this section is also entitled to be registered as a British citizen.(5) No charge or fee may be imposed for registration under this section.””Member’s explanatory statement
This amendment would allow anyone who is descended from a person born before 1983 on the British Indian Ocean Territory to register as a British overseas territories citizen. They may also register as a British citizen at the same time. Both applications would be free of charge. The application must be submitted within 5 years, or in the case of a minor born before the date of coming into force, before they reach 23 years old.

[Baroness Lister of Burtersett (Lab)]

My Lords, I thank the noble Baronesses, Lady Ludford and Lady Bennett of Manor Castle, and the noble Lord, Lord Woolley of Woodford, for their support for the amendment. The amendment would extend the right to register as citizens to the descendants of Chagossians exiled from their homeland, subject to a time limit. I am grateful to Rosy Leveque of BIOT Citizens for her help with it, and to Chagossian Voices for its briefing.

To understand the case for this amendment, a bit of history is necessary. Back in the 1960s and early 1970s, the inhabitants of the Chagos Archipelago—a British Overseas Territory which became part of the British Indian Ocean Territory—were evicted by the then British Government to make way for a US airbase on Diego Garcia, the largest of the islands. They have never been allowed to return. Not only did they lose their homeland, but their grandchildren and other descendants have no right to British Overseas Territory citizenship and, therefore, to British citizenship. Only those born on the islands and the first generation born in exile have such a right. I should perhaps make it clear that the right to citizenship should not be confused with the quite separate right of return, which is not affected by this amendment, important as it is.

The Chagossians were deported to Mauritius and the Seychelles and now around 4,000 live in the UK, but because of the unjust citizenship rules many are undocumented and children have been and continue to be deported. Families have been broken up and communities are divided, as some members have access to citizenship rights while others do not. This has caused hardship for many and has aggravated the trauma associated with exile. The lack of citizenship rights has created insecurity and made it harder to integrate into local communities.

In the Commons, in Committee, the Minister, Tom Pursglove, expressed some sympathy for the case made for the extension of citizenship rights and acknowledged that

“the Chagossians present a unique case.”—[Official Report, Commons, Nationality and Borders Bill Committee, 4/11/21; col. 644.]

He said he would “reflect further”. It all looked rather hopeful but when the Conservative MP, Henry Smith, raised the issue on Report, what looked like a half-open door was slammed shut by the Immigration Minister, Kevin Foster, which was very disappointing. Mr Smith emphasised the anomalies created, the injustices caused and that we are talking about no more than a few hundred to the low thousands of people who would benefit. So far, BIOT Citizens has identified 500 descendants. What is at stake is a small concession but one that would make a huge difference to the lives of those affected. It would also have symbolic importance for a people who have lost their homeland through no fault of their own.

Mr Smith’s amendment was rejected in a single paragraph. There appear to be two strings to the Government’s case. The first is that the amendment

“would undermine a long-standing principle of British nationality law … under which nationality or entitlement to nationality is not passed on to the second and subsequent generations born and settled outside the UK and its territories, creating quite a major precedent.”—[Official Report, Commons, 7/12/21; col. 258.]

I am sure noble Lords can spot what a specious argument this is in this context. The only reason the Chagossians in question do not meet this condition is because they are descended from people who were evicted against their will from a British Oversees Territory. Forced and continued exile prevents them from meeting these long-standing conditions. It is not clear that the Government really understand this, but as the Junior Minister acknowledged in Committee, it is “a unique case” so no precedent would be set, unless the Government have plans to evict others from their British Overseas Territory homelands. I hope and trust that, if the noble Baroness—I think it is the noble Baroness—the Minister has been briefed to use this argument, she will scrap it now.

The second government concern is more credible. They do not want to create an open-ended right in the way that the Commons amendment did, and I think that is reasonable. This amendment therefore creates a five-year time limit for applications, following the Windrush precedent in the British Nationality Act 1981. Those aged under 18 at the time of enactment will have up until the age of 23. I am offering the Minister an opportunity to add something positive, that would be widely welcomed, to a Bill that—with very few exceptions to be found in this part of it—has been widely condemned. If this particular way of capping entitlement is not to the Government’s liking I am, of course, open to discussions about alternative means, such as a generational cap. I very much hope that the Minister will accept the amendment or a revised version of it for Report. Is she willing to meet virtually with me and other signatories to the amendment and those advising me to discuss how we might proceed? I plan to return to the issue on Report to try to put right what Henry Smith MP correctly described as an “appalling injustice”. I beg to move.

[Baroness Ludford (LD)]

My Lords, I thoroughly endorse what the noble Baroness, Lady Lister, has said, and I am very pleased to co-sign this amendment. In the first two groups that we discussed this morning, we talked a lot about righting injustices. This is an opportunity to right a gross historic wrong—a forced eviction and exile that was, indeed, ruled illegal by the International Court of Justice in 2019.

I was one of those who raised this issue very briefly at Second Reading. I do not think the Minister referred to it in her response, although I know she had a lot of issues to cover. It should be noted, though, that the amendment in the other place from Henry Smith MP at Report stage, which the noble Baroness, Lady Lister, referred to, had the sizeable support of 245 Members, displaying the strength of feeling about the trauma and hardship of the Chagossian community that the noble Baroness, Lady Lister, referred to.

The all-party group on Chagos is a strong and active group that has long campaigned to right, in so far as is possible, the wrongs of the 1960s when, having resisted independence from Mauritius, of which Chagos was part, Britain secretly acceded to an American request to make one of the islands, Diego Garcia, available on a long lease as a “communications hub”. Of course, it later became notorious as a site for rendition flights. Anyway, the then British Government of, I am afraid, Harold Wilson, detached Chagos from Mauritius and then emptied Chagos, chucking out its inhabitants. This appeared, apparently, to be compensation for the Americans for the UK declining to get involved in the Vietnam War.

The saga is littered with lies and about-face. The UK told the UN that the Chagos Islands had no permanent population and the Chagossians were merely contract labourers. The British Indian Ocean Territory—BIOT—comprising all the Chagos Islands was detached from Mauritius and, between 1968 and 1973, the entire population of Chagos was removed. Some 2,000 people were deported to Mauritius, some went to the Seychelles and some arrived in the UK, particularly in Crawley, perhaps because it is near Gatwick, in Sussex.

As was discussed this morning, the purpose of Part 1 of this Bill is to address long-standing discrimination in British nationality law. I put to the Committee that Amendment 11 fits perfectly in this context. The original appalling injustice of the late 1960s and early 1970s perpetrated against the Chagossians has been compounded ever since, not only by their continuing enforced exile from their homeland but by the deprivation of their descendants of their citizenship rights. Had they not been evicted but had stayed in BIOT, they would have passed British Overseas Territory citizenship from generation to generation and some would have had the entitlement to be registered as British citizens or at least benefited from the Home Secretary’s discretion to so register them.

As the noble Baroness, Lady Lister, said, Ministers in the other place have provided no justification for resisting the rectification of this injustice suffered by the Chagossians. The Government simply rely, in a sense, on the injustice of eviction to perpetuate the injustice. Because we had chucked them out, they were not BIOT citizens and so they cannot benefit from any subsequent citizenship rights. The Government now have an opportunity with this new clause to make substantial amends—hardly complete amends—for the wrongs done half a century ago. I suggest that it is wrong to seek to assert that correcting the nationality law consequences of this wrong would create any wider precedent, as the noble Baroness said.

By the way, if anyone wants to read the history of the UK’s perfidious treatment of the Chagossians, I recommend this booklet of a lecture by Professor Philippe Sands QC entitled Chagos: The Last British Colony in Africa – A Short History of Colonialism, a Modern Crime Against Humanity? and I will give this to Hansard so it can correctly identify it. I urge the Minister to give a positive response.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I do not think that anybody in this Committee would say that what happened to the Chagossians was, by any means, acceptable to them personally. I do not think I was trying to make that case.

[Baroness Lister of Burtersett (Lab)]

My Lords, I thank everyone who has contributed to this debate. It is fair to say that there is unequivocal support across the Committee—perhaps not for the exact wording of the amendment, but for what it is trying to achieve. Noble Lords spoke very strongly. It is unusual for nothing to be said in opposition to what is trying to be achieved.

The Minister expressed her sympathy and empathy. I am afraid that butters no parsnips when it comes to what the Chagossians rightly want. As other noble Lords have said, this is a question of justice and human rights. My noble friend Lady Chakrabarti asked a pertinent question about the distinction between those who choose to leave a British territory and those who are forced out. The Minister has accepted that a wrong was done. Whichever Government were in power—I know it was my party—we share the shame. Here is an opportunity, not to put it right but at least to do something tangible that will go some way towards putting one aspect of it right.

I am desperately disappointed that the Government are still using the argument that, because the Chagossians are in the wrong place, they are subject to a long-standing principle of British law. What other group of people has been forcibly evicted in this way? As I said, we are not setting a precedent because I assume we are not planning to evict anybody else.

I thank the Minister for the offer of a meeting. Perhaps we could take a cross-party delegation to reflect the strength of feeling across the House. I hope she will think again. If not, I shall want to bring this back on Report.

My noble friend Lady Whitaker has been supporting the Chagossians for many years; I am relatively new to this issue and the legal position is extremely complicated. I may not have it completely right but there is a principle of justice and human rights, which has been recognised across the Committee. We must use this legislation to put it right. As a number of noble Lords have said, there is no better place than this part of this Bill, which is about putting right historical discrimination in nationality and citizenship law. Having said that, I beg leave to withdraw the amendment for now.

Amendment 11 withdrawn.

--- Later in debate ---

Could some of the sharpest corners in this legislation be smoothed off? I do not know, but it is because of those millions of silent majority who would see many of the objections to Clause 9 to be perverse, unfair, unreasonable or possibly all three, that I think the Government have so far got the balance right in what they are seeking to achieve in Clause 9 and why I support it.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am not a lawyer either, but like my noble friend Lady Blower I have read the Bingham Centre’s report on this. I want to draw your Lordships’ attention to one aspect of it, which I do not think has been mentioned—I apologise if it has. There have been so many good speeches, particularly from the other side of the House, and across the House.

According to the report, the clause includes a retroactive power which would allow what was not lawful at the time to be made lawful now. The report suggests that this is retroactive lawmaking of the worst kind and particularly offends the rule of law. I think we should do away with the clause altogether. I have also read an article by Dominic Grieve, the much-respected former Conservative Attorney-General, on the “ConservativeHome” blog, which I must admit is not normally at the top of my daily reading list. It is an instructive piece. I will not read at length, because time is getting on, but he calls it,

“using legislation as a form of propaganda”

That is from a former Attorney-General and worth taking note.

I also draw attention to the fears that this is creating in the wider public. I have just had an email saying that over 100 organisations have written an open letter to the Prime Minister asking that this clause be removed. I hope that, when we come to Report, the House will remove this clause, which offends the rule of law.

[Lord Paddick (LD)]

My Lords, I am also not a lawyer, but we have Amendment 29 in this group and we join the noble Lord, Lord Anderson of Ipswich, in opposing the Question that Clause 9 stand part of the Bill. I accept that Clause 9 is about giving notice, but the amendments in the group go beyond that. The main concerns that this group addresses are the significant increase in the use of the power to deprive British citizens of their citizenship and the new provision of dispensing with the requirement that the Secretary of State requires notice to be given to a person deprived of citizenship.

There have been many detailed and compelling speeches and I do not intend to repeat them, but I will refer to the powerful and personal speech of the noble Baroness, Lady Warsi, about how this provision is affecting some British citizens. This is not going to affect some British citizens, like me, at all, but when you hear her personal recollections of the fear that this clause is generating and about the importance of the family attaché case—reinforced by the noble Baroness, Lady Mobarik—you understand that, although it may not be targeting particular communities within the cohort of British citizens, it is certainly causing distress among certain parts of that cohort.

To answer the question of the noble Lord, Lord Hunt of Wirral, on what we do with those people who wish to do us harm, I say that we prosecute them in the courts. We do not dump them on other countries.

Depriving someone of their citizenship is a very serious step to take and it is being taken with increasing regularity. To then do away with the requirement even to notify the subject is totally unacceptable. How can anyone take any steps to correct or challenge a decision that they know nothing about? The noble Lord, Lord Hunt, talked about how we notify the unnotifiable. Even in the case that he and other noble Lords referred to, which has been in the courts, the individuals were not uncontactable; they were not unnotifiable within the law. As the noble Lord, Lord Anderson of Ipswich, explained, notice could have been served on that individual, but the Home Office chose not to. In the figures he gave about how many times that has stopped the Home Office from serving notice on somebody of deprivation of nationality, the answer was zero. Clause 9 is not only unreasonable but, based on the facts, unnecessary as well.

With the increased use by the Secretary of State of the power to deprive a British citizen of their citizenship, we support Amendment 28 in the name of the noble Lord, Lord Anderson of Ipswich, which says that reviews of the use of the power should be annual and not every three years. We also agree with Amendment 27 in the name of the noble Lord, Lord Moylan, to restrict the circumstances in which someone can be deprived of their British citizenship. My noble friend Lady Hamwee will address our Amendment 29, which removes the power of the Secretary of State to directly deprive a British citizen of their citizenship, requiring an application to be made to a court.

We agree with the principle behind Amendments 32 and 33 in the name of the noble Baroness, Lady Bennett of Manor Castle, that the powers the Secretary of State has to deprive British citizens of their citizenship need to be curtailed and the process made more transparent, but we believe that our Amendment 29 achieves those objectives.

--- Later in debate ---

[Lord Dubs (Lab)]

My Lords, I again refer to my membership of the Joint Committee on Human Rights. We have produced detailed reports on many aspects of the Bill, including on this matter.

It is surely a basic right that nobody should be stateless. This is fundamental. Stateless people have fewer rights—they have virtually none—and they are vulnerable. I have tabled this amendment to avoid statelessness.

As things stand, stateless children born in the UK are covered by this provision in the Bill. Prior to the British Nationality Act 1981, all children born in the UK were British under jus soli. As I said earlier, I served in the Commons at the time—indeed, I was on the Public Bill Committee which dealt with this Bill for many long weeks—and we had a long discussion about jus soli, and I only hope that the position I took then is the same as the one I am taking now—in other words, in opposition to the provision. I think I can claim that I have been consistent over 40 years; I hope so, but if anyone wants to look it up in order to disprove it, I will listen to them.

Clause 10 has a new requirement that will make it more difficult for stateless children to acquire British citizenship. It puts another hurdle in the way of acquiring that citizenship. The onus will now be on children—or, if they are very young, the people responsible for them —to produce the evidence, unless the Home Secretary is satisfied that the child is unable to acquire another nationality. The provision will effectively mean that a child born in the UK, or their parents or carers on their behalf, will have to prove that they could not reasonably have acquired another nationality—so the onus is on the child, or the parents or carers, to prove that. That may be quite a difficult point to prove, and the onus is switched in allocating the burden of responsibility. That could be especially hard for children who do not have significant support or access to the relevant documents. For example, the children of refugees might find it very difficult to have the necessary documentation or to be able to produce the evidence, so it would put a significant additional burden on them.

It is an anomaly that when children become adults they can apply. It remains an oddity that a child can remain stateless for some years until they become an adult, when they can then apply. What is the advantage to anyone of having a child stateless for that period? It certainly cannot be in the best interests of the child, and that surely must be the bottom line. The United Nations Convention on the Rights of the Child always talks about what is in the best interests of the child; Article 7 says that a child should be registered as having a nationality immediately after birth. That is fairly clear. Furthermore, it says that a contracting state shall grant its nationality to a person born in its territory who would otherwise be stateless. With this clause, the Government are going against these provisions in the Convention on the Rights of the Child.

It is difficult to see how Clause 10 complies with the United Kingdom’s obligations under both the 1961 United Nations Convention on the Reduction of Statelessness and the Convention on the Rights of the Child. It is an unnecessary measure that makes things even more difficult. I can see no argument, not even the security arguments that the Minister advanced in the previous debate, for putting this hurdle in the way of children who might otherwise be stateless. I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I support my noble friend Lord Dubs and the proposal that Clause 10 should not stand part of the Bill. I put on record my thanks to the Joint Committee on Human Rights for the very helpful work that it has done on the Bill, with a whole raft of very useful reports. According to ILPA and the Bar Council, this clause contravenes the 1961 UN Convention on the Reduction of Statelessness, and that should give us pause for thought. Research by the European Network on Statelessness shows how some children in very vulnerable circumstances will be affected, as my noble friend said, and found that there can be good reasons for delays in registering a child’s nationality.

To my mind, the justification that the clause is needed because there has been a significant increase in the number of registrations of stateless children smacks of the culture of disbelief and suspicion criticised by Wendy Williams in the Windrush report. Surely it is to be celebrated that more children are exercising their rights—no thanks to the Home Office, which has been dilatory in making children and their parents aware of these rights and in removing the barriers to registering them. It is thanks to the hard work of organisations such as the Project for the Registration of Children as British Citizens that more children and parents have become aware of the right to registration. As I say, this is to be commended, not cracked down on as if it were some kind of crime.

As the JCHR observes, and Amendment 31 addresses —a point made also by my noble friend Lord Dubs—it is difficult to see how this clause is compatible with the UN Convention on the Rights of the Child. While the Home Hoffice human rights memorandum states that it has considered the best interests of the children affected, it is not clear from it how such a clause is in their best interests, so can the Minister spell out exactly how this clause meets the best interests of children affected?

[Baroness Ludford (LD)]

My Lords, as a member of the Joint Committee on Human Rights, I agree with the noble Baroness that we have done good work on the Bill. On a more serious note, perhaps I may say how much we appreciate the chairmanship of the right honourable Harriet Harman MP, whose recent bereavement has saddened us so much.

I will speak to both Amendments 30 and 31. As has been said by other noble Lords, Clause 10 amends the British Nationality Act to introduce new requirements for the registration of a stateless child—a child born in the UK—and could make it even more difficult for them to acquire British nationality, to which there are already significant hurdles. I could not agree more with the noble Baroness, Lady Lister. Why should it be a problem that children are becoming stateless and ceasing to have the security of nationality?

Under Clause 10, the Home Secretary has to be satisfied that the child is unable to acquire another nationality. That puts that child in the position of having to prove that they could not reasonably have acquired another nationality. The policy rationale seems to be a suspicion that parents are wilfully causing their child’s statelessness—the culture of disbelief that the noble Baroness, Lady Lister, referred to. As colleagues and the JCHR say, it is difficult to see how the best interests of the child, as required by the 1961 UN Convention on the Reduction of Statelessness, are served by the new test in this provision. How is it in that child’s interests to be left stateless?

Indeed, asserts the JCHR, Clause 10

“risks punishing the child for a perceived failure”

on the part of their parent or carer, which is obviously through no fault of their own. However, the UN convention does not impose a requirement on the parent to exhaust all avenues to seek the citizenship of another state. So Clause 10 could move the UK away from the convention. I was interested that the noble Baroness, Lady Lister, quoted ILFA and the Bar Council as saying that they do indeed think that this is a contravention of the convention, and I can see why. Amendment 30 is an attempt to move the UK back towards the intention of the convention by saying that British citizenship could only be withheld

“where the nationality of a parent is available to the child immediately, without any legal or administrative hurdles.”

Amendment 31 aims to make the best interests of the child central to the decision-making.

Finally, in addition to the risk of alienation from our society of individual children, it cannot be in the interests of British society as a whole for young people born here to be excluded from sharing citizenship and thus rootedness in their community.

Nationality and Borders Bill

Baroness Lister of Burtersett Excerpts

2nd reading
Wednesday 5th January 2022 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I welcome the long overdue ending of the injustice done to those deprived of the right to citizenship because their British Overseas Territory father was not married to their mother. I pay tribute to Trent Miller and David Varney for their years of battling to make this happen. Sadly, this positive citizenship step is overshadowed by making it harder for stateless children to acquire British nationality, the last-minute introduction of the power to remove citizenship without notice and the very disappointing response in the Commons to attempts to remedy the gross injustice done to the Chagossians, evicted permanently from their homeland by the British Government, with their descendants denied citizenship rights. I hope we can rectify that and rectify the long- standing overcharging of children’s citizenship fees.

I turn to the asylum sections of what has been justifiably dubbed the “anti-refugee Bill”. Contrary to government claims, the Bill, as we have heard, is, in the words of the UNHCR,

“fundamentally at odds with … the United Kingdom’s international obligations under the Refugee Convention”.

First, through criminalisation; secondly, through the application of inadmissibility rules which, according to the UNHCR, rely on a

“fundamental misapplication of … the Refugee Convention”,

in particular a non-existent “first safe country” principle; and thirdly, by the creation of two refugee classes, the Bill effectively denies most asylum seekers the rights afforded by the convention. Moreover, through the prospect of offshoring, discredited by Australian experience, it strips them of their dignity and humanity.

The temporary protection status that awaits “group 2” refugees is likely to mean the kind of barracks-style accommodation found to be dehumanising and injurious to mental health by an APPG on Immigration Detention inquiry, of which I was a member, together with a significant increase in the numbers with no recourse to public funds, spelling serious hardship, including for children. In short, to quote the UNHCR, group 2 status is

“a recipe for mental and physical ill health, social and economic marginalisation, and exploitation.”

This is all in the name of the all-important but, at present, very limited safe and legal routes. Yet, as the UNHCR observed, resettlement programmes, crucial as they are, cannot on their own compensate for the abdication of global responsibility that this Bill represents. Moreover, far from expanding such routes—for instance, through humanitarian visas—the Bill’s weakening of family reunion rights will reduce them.

One consequence, the UNHCR warns, will be that more women and children are likely to attempt dangerous journeys. The ministerial mantra that women and children are being elbowed aside by young men is used to suggest that the former will benefit from this legislation. How is it, then, that Women for Refugee Women and more than 50 other organisations have written to the Home Secretary to warn that more women will be wrongly refused asylum, retraumatised and placed at risk of violence and abuse? Among their concerns are the consequences for women fleeing gender-based violence, more restrictive rules governing asylum interviews and the definition of “particular social group” which women often use to make their case. We have here the institutionalisation of the culture of disbelief that has long marred the asylum process. Children’s organisations share many of these worries, as well as expressing alongside professional organisations strong opposition to the proposed changes to age assessments.

I have two questions for the Minister. First, the Bill, as we have heard, is premised on the assumption that those entering the UK unlawfully, particularly in small boats, are not genuine asylum seekers. How can the Government make such an a priori assumption, particularly given the Refugee Council’s analysis that shows that most of those crossing the channel are likely to be recognised as being in need of refugee protection? Secondly, why should we accept the Government’s interpretation of the refugee convention over that of the body with supervisory responsibility for it?

In conclusion, I cite a refugee who contributed to a Refugee Action consultation following the Government’s failure to take adequate account of refugees’ lived experience in their own consultation. She asked that we look through the eyes of those affected so that we do not create rules that will in future fill us “with shame and regret”. If we let this pernicious Bill pass unamended I, for one, will feel both deep shame and intense regret.

Police, Crime, Sentencing and Courts Bill

Baroness Lister of Burtersett Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 13th December 2021 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I rise to speak to Amendment 57, which is in my name, those of the noble Lords, Lord Bourne of Aberystwyth and Lord Alton of Liverpool, and that of the right reverend Prelate the Bishop of Manchester, whose support I am very grateful for.

First, however, I express my support for other amendments in this group, in particular the one in the name of my noble friend Lady Whitaker, who, as has already been said, has been such a long-standing and doughty campaigner on these issues. I also wish to make clear my opposition to this part of the Bill, on the grounds of social justice and human rights, which, as we made clear last week, should not be subject to a process of so-called “gold-plating”. I will not, however, repeat the arguments that I made in Committee, and unfortunately I do not think, realistically, that we can excise these clauses, damaging as they are. I say that with apologies to the noble Baroness, Lady Bennett of Manor Castle, who has made a very strong case for doing so.

As I warned the Minister in advance, the purpose of this amendment is not quite what it says on the tin, which reflects what the Public Bill Office considered to be in scope. The phrase “entrenched inequality” is taken from a June 2019 press statement for the launch by the then Communities Minister, Lord Bourne, of a national strategy to tackle the inequality experienced by the Gypsy, Roma and Traveller communities. Thus, what this amendment seeks to do is facilitate a debate about what has happened to this much-needed and overdue strategy, and to push for some action on it. It is framed in the way that it is because Part 4 should not have effect until the strategy, which should address Part 4’s likely impact on entrenched inequality, has been published, with a report laid before Parliament for debate.

The announcement of the proposed strategy in June 2019 followed a blistering report from the Women and Equalities Select Committee. It concluded that Gypsy, Roma and Traveller people have the worst outcomes of any ethnic group across a huge range of areas, including education, health, employment, criminal justice and hate crime—to which I would add housing, which it chose not to look at. The committee observed:

“While many inequalities have existed for a long time, there has been a persistent failure by both national and local policy-makers to tackle them in any sustained way.”


The committee deplored the lack of leadership shown by the relevant ministry and the failure to develop a cross-departmental strategy. It was also critical of the reliance on pilot projects that did not seem to go anywhere. In a letter to the then Minister, the committee welcomed the announcement of the proposed strategy as “a very positive step”, but noted the lack of detail. More than two years later we still await that detail, despite repeated ministerial assurances that they remain committed to a strategy to tackle the inequalities identified by the committee and others.

In Committee, I asked the Minister for an update and an assurance that the long-awaited details would be published before Report. The Minister responded that she understood that the department for levelling up, et cetera, was

“working closely with other government departments to progress the strategy, which will be published in due course.”—[Official Report, 3/11/21; col. 1333.]

She then predicted that I would roll my eyes at the phrase “in due course”—and how right she was. She assured noble Lords, however, that the Government remained firmly committed to the strategy’s delivery.

I am afraid that simply is not good enough, especially in the face of legislation that is widely predicted to entrench further the inequalities suffered by the GRT communities. I gave the Minister notice of the purpose behind this amendment in the hope that she might have been able to extract something more substantial than “We’re working on it” from the department for levelling up et cetera, and answer questions such as: what are the parameters of the proposed strategy? Will there be targets? When will it finally be published? Answers to such questions are the very least we—and, more importantly, members of the GRT communities—can expect at this stage. I hope the Minister will be able to provide some answers.

Windrush Compensation Scheme

Baroness Lister of Burtersett Excerpts

Wednesday 24th November 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

As I said previously in Questions about the Windrush scheme, we have reached out not just to communities where we think applications might be forthcoming but to communities and faith leaders overseas, because we want as many people to apply as are entitled to—not just entitled to but deserve—the compensation for their suffering. To go back to the noble Baroness’s previous question, moving the scheme out of the Home Office would risk significantly delaying vital payments to those affected.

[Baroness Lister of Burtersett (Lab)]

The Home Affairs Committee report said:

“We can only conclude that four years on from the Windrush scandal, vital lessons have still not been learned by the Department.”


It is four years on. What is the Minister’s explanation for this shameful failure?

[Baroness Williams of Trafford (Con)]

My Lords, it was possibly a year ago, even two years ago, that I stood up and acknowledged that the scheme was not running as swiftly as it could, that people were not getting the compensation that they should and that we needed to do more to reach out. I fully accepted that criticism.

But, as I said to the noble Baroness, Lady Benjamin, we continue to make improvements to the scheme. The result of this is evidenced in the amount of compensation paid out rising from less than £3 million, which it was at the time, to over £31.6 million, with a further £5.6 million having been offered. We have brought in some new support measures to those claiming on behalf of relatives who have passed away. We have also increased our number of caseworkers to over 80, with another 34 coming online shortly. For those needing more support in applying, we have funded an organisation to provide free independent claimant assistance to individuals.

Police, Crime, Sentencing and Courts Bill

Baroness Lister of Burtersett Excerpts

Lords Hansard - part two & Committee stage
Wednesday 3rd November 2021 Lords Chamber

[The Lord Bishop of London]

My Lords, I have listened with interest to what noble Lords have said on this group of amendments, and I rise to add my support to them, particularly Amendment 149.

In 2019, the General Synod, the parliament of the Church of England, held a serious and lengthy debate on the treatment of Gypsy, Roma and Travelling communities. It noted the long and ugly history, going back at least as far as the Egyptians Act, passed by your Lordships’ predecessors in 1530, which sought to ban further immigration from Romani Gypsies and to deport resident Gypsies.

In preparation for that debate, a paper was circulated, entitled Centuries of Marginalisation; Visions of Hope. This was both sobering and a call to action. It was a challenge to the Church to do more, including providing sites and freeing up land. We have not made enough progress on the promises made at that time. In all humility, I should say that the Church, like so many other social institutions, has too often fallen short or even been complicit in the discrimination and marginalisation felt by these communities. That has been a failing on our part, and it was chastening to listen to the stories in that debate and to hear the level of abuse, discrimination and pain which has been caused. The synod’s resolution called on the

“Bishops in the House of Lords to continue to speak out boldly against legislation that seeks to further marginalise Gypsies, Irish Travellers and Roma”.

It is in that vein that I feel the need to address the Committee today, because I fear we are in danger of making the situation still worse.

It is 10 years since Michael Hargreaves and Matthew Brindley wrote in Planning for Gypsies and Travellers, a publication by the Irish Traveller movement, that

“There are no stopping places, few transit sites, no emergency sites and families on the road face constant eviction”.


The lack of permanent sites and the difficulties of getting planning permission due to local opposition, egged on by a hostile media, is the single biggest issue facing the Gypsy and Traveller communities. Not only has this not changed in the intervening decade but the Bill risks significantly exacerbating the situation.

Amendment 149 would be a small but necessary remedy to that exacerbation, returning us, as several have already noted, to a previous status quo. It would remove the current tyranny of the majority problem, which sees sites for Travellers weighed against electoral concerns. Unauthorised encampments are a consequence of inadequate authorised ones. This is not new, nor is it surprising, but it is possible to remedy—and I would urge Ministers to give serious consideration to this amendment.

Repeatedly, Ministers have told your Lordships’ House and Members in the other place that the Bill does not represent an attack on the Gypsy, Roma and Traveller way of life. Yet that sentiment is clearly not shared by many in those communities who have written to Bishops, and, I am sure, to other Members of your Lordships’ House, in advance of this Bill. It is certainly not the opinion of the Churches Network for Gypsies, Travellers and Roma, to which I would like to add my thanks, along with my friend the right reverend Prelate the Bishop of Manchester and the noble Baroness, Lady Whitaker. I hope that it is not too late for the Government to take steps to ameliorate what is presently proposed.

[Baroness Lister of Burtersett (Lab)]

My Lords, I will speak to Amendment 136, to which I have added my name, but I support all these amendments, which attempt to mitigate the injurious effects of Part 4 on one of the most marginalised communities in our society. I will leave to the end my more general comments relating to the clause stand part debate, and I apologise for not being able to make it to Second Reading, because I was away.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in this debate on Clauses 62 and 64. I am grateful to have had discussions with the noble Baroness, Lady Whitaker, and am happy to have further discussions with the noble Lord, Lord Young of Norwood Green, before Report.

These clauses deliver on a clear manifesto commitment to tackle unauthorised encampments. It is worth quoting directly from the Conservative manifesto, as the commitment was in explicit terms. The manifesto said:

“We will give the police new powers to arrest and seize the property and vehicles of trespassers who set up unauthorised encampments, in order to protect our communities. We will make intentional trespass a criminal offence”.


The noble Baroness, Lady Lister, and others have challenged me to say, if I was not talking just about the Gypsy, Roma and Traveller community, who I was talking about. It is anyone who sets up camp on unauthorised land and causes significant damage, disruption or distress. My noble and learned friend Lord Garnier gave us an example, and he was not even sure who the individuals were. When I go on holiday to Cornwall, I see examples of unauthorised encampments, and I do not know who the individuals are. It is a wider problem than just Gypsy, Roma and Travelling communities.

We have brought forward the measures in Part 4 because we understand the challenges many locations across the country face when individuals cause significant damage, disruption or distress to communities, businesses, and landowners. The financial cost of cleaning up sites and repairing damage can also be significant. It is not a sound assumption to say that landowners will have sufficient resources to be able to clean up after some of the damage that is caused to their land. The measures are a proportionate means of protecting the rights of communities. While we must ensure fair and equal treatment for Travellers, and recognise that the majority are law-abiding, as the noble Lord, Lord Young of Norwood Green, said, we are equally clear that we will not tolerate law-breaking and we are determined to ensure that the police have the powers they need to support and serve their communities. That is why we are introducing this new criminal offence as a proportionate means of protecting the rights of communities.

It is very important to recognise that the threshold for the new offence is high. The act of taking a vehicle on to someone else’s land without their permission is not in and of itself criminalised by this clause, nor is an “unauthorised encampment” in itself an offence. There are several conditions to the offence, all of which must be satisfied for someone to be found guilty of the offence. Most importantly, the offence requires conduct or residence that causes, or is likely to cause, significant damage, disruption or distress. I would hope that no one in your Lordships’ House would condone such conduct.

I move now to the amendments. The three government amendments in this group, Amendments 134, 146 and 148, are simply clarificatory in nature so I do not propose to say more on them at this stage.

Amendment 133 in the name of the noble Baroness, Lady Whitaker, would have the effect that no criminal offence is committed unless the police make the request to the trespasser to leave. This would remove the ability of a landowner to trigger the offence by requesting that trespassers leave their land, and would slow the enforcement process down, while using more police resource.

As I have said, the new offence targets only those who cause significant damage, disruption or distress and who do not leave when asked to do so. It is right that on those occasions where significant harms have taken place, enforcement action should be taken to protect citizens and businesses. This amendment would remove the ability for police to act more quickly where they need to in response to unauthorised encampments causing significant harm, disruption or distress.

Noble Lords have raised concerns that this means that those on unauthorised encampments could be criminalised simply because the landowner does not want them there or because they hold prejudiced views towards people. This is simply not the case. The police will need to continue to collect evidence to form reasonable grounds for suspecting that the offence has been committed, and the offence will apply only where specific conditions have been met. In addition, we expect that the police will continue to have regard to their duties under the Human Rights Act 1998 and to their duty to safeguard the vulnerable before and when taking enforcement decisions.

A few noble Lords referred to the word “significant”, specifically the noble Baroness, Lady Brinton. It is widely used in legislation, and examples are set out in the draft statutory guidance. This type of qualifying term is used for other offences without government guidance; for example, the Public Order Act 1986 refers to

“serious disruption to the life of the community”,

and Section 14A of that Act, on prohibiting trespassing assemblies, refers to “significant damage”.

On the Human Rights Act, the Government believe that the measures are compliant with the ECHR and the Equality Act 2010. We respect the rights of the Traveller community to follow a nomadic way of life, in line with their cultural heritage. Enforcement action will not be based on race or ethnicity. Anyone who causes significant harm, disruption or distress and does not leave when asked to do so will commit the offence.

Amendment 135 in the name of the noble Lord, Lord Rosser, seeks to provide that the offence is committed only when a suitable site has been offered. There is no justification for causing significant harm, disruption or distress—the lack of availability of a pitch on an authorised site cannot be an excuse for such conduct. As I have said, the fact of the unauthorised encampment is not in itself an offence. If significant harms are being caused, it is only right that the police have powers to tackle those harms, and that those harms should incur enforcement action in the way that any other criminal behaviour would.

Amendment 136 in the name of the noble Baroness, Lady Bakewell of Hardington Mandeville—I know she has had to leave, or else she will not get her last train home—would require a senior police officer to conduct a welfare assessment before considering if enforcement action is proportionate. I can assure the Committee that, in making decisions around the seizure of property, the police will need to take into account welfare considerations and vulnerabilities, and, where possible, should liaise with local authorities regarding suitable accommodation, just as they currently do.

Therefore, we do not think that this amendment is necessary. The police already give full consideration to their responsibilities under their public sector equality duty, and to the potential impact that issuing a direction to leave, or utilising powers of arrest and seizure, may have on the families involved, before they reach a decision on taking enforcement action. Each case will be dealt with on its own merit and according to the evidence.

[Baroness Lister of Burtersett (Lab)]

I am sorry to interrupt. Perhaps at this point the Minister could say what is meant by not gold-plating these considerations, because it gives the impression that, ultimately, they can be put to one side.

Domestic Abuse Bill

Baroness Lister of Burtersett Excerpts

Report stage
Wednesday 17th March 2021 Lords Chamber

Moved by

[Baroness Lister of Burtersett]

88: Clause 73, page 58, line 19, at end insert—
“( ) section (Controlling or coercive behaviour in an intimate or family relationship),”Member’s explanatory statement
This amendment is consequential on the proposed new Clause in the name of Baroness Lister of Burtersett that amends section 76 of the Serious Crime Act 2015.

--- Later in debate ---

Moved by

[Baroness Lister of Burtersett]

91: Clause 73, page 58, line 32, at end insert “and any strategy to end violence against women and girls adopted by a Minister of the Crown.”
Member’s explanatory statement
This amendment ensures that statutory guidance issued alongside the Domestic Abuse Bill takes into account any violence against women and girls (VAWG) strategy adopted by the Government, so that efforts to prevent and address domestic abuse are linked to integrated and coordinated responses to tackle VAWG.

[Baroness Lister of Burtersett (Lab) [V]]

My Lords, I speak to Amendment 91 in my name and those of the right reverend Prelate the Bishop of Gloucester and the noble Baroness, Lady Hodgson of Abinger. I am grateful for their support on this important issue. I am also grateful to the End Violence Against Women Coalition, which has helped with the amendment.

The amendment is very modest. It simply ensures that the statutory guidance on the Bill takes into account any violence against women and girls strategy adopted by the Government, to ensure that efforts to prevent and address domestic abuse are co-ordinated and integrated with wider VAWG strategies.

We have retabled this amendment on Report, in part because it rather got lost in debate on the lead amendment it was grouped with in Committee, but more importantly because we were at a loss at to why the Government did not feel able to accept an amendment which does no more than give legislative underpinning to what they claim is their intention.

We are extremely grateful to the Minister, who found time to see us and for the frank discussion we had. However, we came away even more puzzled because it seemed that we agreed on all the arguments relating to the amendment other than the need for the amendment itself.

The amendment has the support of the domestic abuse commissioner-designate and is also one of a small number of amendments that the EHRC have briefed in support of. The latter points out the overlap between domestic abuse and many other forms of VAWG, such as rape and sexual assault. They cite statistics that show that most rapes and sexual assaults are carried out in the context of domestic abuse. Indeed, a Home Office fact sheet on the domestic abuse commissioner states:

“We believe that there is merit in introducing a Domestic Abuse Commissioner specifically to focus on the issues affecting victims of Domestic Abuse. However, we know that a large proportion of sexual violence occurs within a domestic context, and the Commissioner will play an important role in raising awareness and standards of service provision across all forms of Violence Against Women and Girls.”


Why is there resistance to an amendment that simply reflects this position?

The Home Office statement shows that it is quite possible to make an explicit link with to VAWG without in any way diluting the focus on domestic abuse. Moreover, the Minister acknowledged in Committee that

“domestic abuse is, at its core, a subset of wider crimes against women and girls”,—[Official Report, 10/2/21; col. 427.]

which is not to deny that men and boys can also be victims. So in the interests of coherence and a holistic approach, it surely makes sense for the statutory guidance explicitly to reflect that.

The Minister also said in Committee:

“We know that victims’ needs must be at the centre of our approach to domestic abuse.”—[Official Report, 10/2/21; col. 425.]


As the Minister well knows, as evidenced by the lived experience of organisations on the ground, in practice those needs all too often cannot be neatly separated out into domestic abuse and other forms of VAWG. Again, this needs to be recognised in the statutory guidance. Yet in Committee, the Minister said that the amendment was not necessary and that Clause 73(3), which the amendment seeks to augment, is sufficient. That really was her only argument against it. The existing subsection, which was inserted by the Government in response to calls for an explicitly gendered approach, requires account to be taken, so far as is relevant, of the fact that the majority of domestic abuse victims are female, but it says nothing about violence against women and girls as such. The amendment would complement and strengthen the subsection.

The EHRC certainly does not agree that the existing clause is sufficient, nor do the many organisations on the ground working with women subjected to violence in its many forms, including domestic abuse. I will not repeat their wider arguments about the separation of the domestic abuse and VAWG strategies that I made in Committee, but it is important to understand the sector’s concern about this because it provides a context for the amendment. Indeed, EVAW and 11 other specialist organisations with expertise in supporting survivors of domestic abuse and other forms of violence against women wrote to the Minister last week urging her to support the amendment. Please do not underestimate the message it is sending out to these and other stakeholders, which are already very unhappy about the separation of the strategies. If the Government continue to hold out against this minimalist amendment, I am pretty sure that it will be taken as evidence that, for all their fine words, they will not pursue an integrated approach to violence against women and girls and domestic abuse. Symbols matter, and refusal to accept the amendment will be seen as a pretty negative symbol.

Even if the sector’s fears are unfounded, there is another reason why the amendment is necessary. We all appreciate the commitment of the noble Baroness, Lady Williams, and Victoria Atkins, the other Minister with responsibility for these matters, but Ministers do not remain in their positions forever. Indeed, I have already read speculation that the latter might be heading for the Cabinet. Future Ministers might not share their understanding of the symbiotic relationship between VAWG and domestic abuse. Requirement by law of explicit reference to that in the guidance would future-proof the guidance. Moreover, it would help to ensure compliance with Article 7 of the Istanbul convention, which requires

“a holistic response to violence against women”,

which of course includes domestic abuse.

At a time when public attention is rightly focused on violence against women in the public sphere, it is all the more important that the Bill, through the statutory guidance, makes explicit the link between domestic abuse and the many forms of violence against women that are even more prevalent in the private domestic sphere. It is not too late for the Government to accept this extremely modest amendment, or to signal that they will bring forward their own amendment at Third Reading. There really is no convincing argument against it and recent distressing events have strengthened the arguments for it. I beg to move.

[Baroness Hodgson of Abinger (Con) [V]]

My Lords, I shall speak in support of Amendment 91, to which I added my name, and which has been so ably moved by the noble Baroness, Lady Lister. I note my interests in this area as declared in Committee.

I too am very grateful to my noble friend the Minister for finding the time to talk to us about this. However, as I have said before, it is important that the VAWG strategy is referenced in the Bill, because separate domestic abuse and violence against women strategies, albeit complementary ones, will not be more effective than an integrated one. As we have already heard, it is something that a number of organisations working in this space have highlighted as a gap that is very important to address, especially in the light of the events of this past week. This short amendment would neatly remedy this issue, and I hope that the Minister will undertake to think again and accept it.

--- Later in debate ---

[Baroness Williams of Trafford (Con) [V]]

My Lords, I start by acknowledging the comments of the noble Baroness, Lady Fox, on what Helena Edwards said—that is something upon which we should all reflect.

As the noble Baroness, Lady Lister, said, Amendment 91 relates to the linkages between domestic abuse and wider violence against women and girls. The Government are working on two new strategies, due to be published later this year, the first of which is a violence against women and girls strategy, replacing the old one, which expired in March 2020, followed by a complementary domestic abuse strategy. The amendment seeks to ensure that any guidance issued under Clause 73 of the Bill takes into account

“any strategy to end violence against women and girls adopted by a Minister of the Crown.”

The main concerns raised by proponents of the amendment centre around the Government’s decision not to produce a single, integrated violence against women and girls strategy that includes domestic abuse. This has wrongly been interpreted as an attempt to downplay the gendered nature of domestic abuse.

It is irrefutable that, while anyone can be a victim of domestic abuse, it is a crime of which the majority of victims are women. We recognise the gendered nature of domestic abuse, and the Bill acknowledges this in Clause 73(3), which provides:

“Any guidance issued under this section must ... take account of the fact that the majority of victims of domestic abuse ... are female.”


The draft guidance we have published does just that. We have been clear that the two strategies will complement each other and that the Government fully recognise that domestic abuse is a subset of violence against women and girls.

The Bill is focused on domestic abuse, and for good reason. Domestic abuse is one of the most common crime types, with 2.3 million victims a year, and the cause of tackling it and providing better support and protection for victims is deserving and indeed requires its own Bill, commissioner and strategy. We are producing a separate but complementary domestic abuse strategy in order to continue working on the excellent provisions created by the Bill because, as I have said, domestic abuse deserves this unique consideration.

I reiterate that, in producing a discrete domestic abuse strategy, the intention is to create space to focus on this high-harm and high-prevalence form of VAWG, while allowing space for other VAWG crimes to be considered as part of the VAWG strategy. The two strategies will work together to drive down VAWG crimes and their impact on society, and both strategies will continue to recognise the gendered nature of these crimes. As I have said, the strategies will complement each other and share much of the same framework and evidence.

We recently concluded the call for evidence for the violence against women and girls strategy, through which we also welcomed evidence on domestic abuse. However, as I said in the previous debate—I now have an updated figure—we have reopened the call for evidence for two weeks to allow a further opportunity for everyone’s voice to be heard. As of last night, the call for evidence had received just shy of an incredible 137,000 responses, and I hope that we will now receive many more.

As such, we fully acknowledge the direct link between domestic abuse and violence against women and girls, but the Government do not think that this amendment is necessary or appropriate for a domestic abuse Bill. The Bill already recognises the gendered nature of domestic abuse, and we do not think that a reference to a separate VAWG strategy is directly relevant to the Bill. If it were to refer to any strategy, it should be the planned domestic abuse strategy, but, for the avoidance of doubt, I am not advocating an amendment to this effect.

I do not think that I have persuaded the noble Baroness; I hope that I have and that she will be content to withdraw her amendment.

[Baroness Lister of Burtersett (Lab) [V]]

I thank noble Lords and all who spoke in support of this amendment. I was puzzled by the intervention of the noble Baroness, Lady Fox, because most of it did not seem to be relevant to this amendment at all. I am even more puzzled and disappointed by the Minister’s response—I think she knew very well how I would respond. As far as I can see, the arguments have not moved on since Committee, whereas our argument has.

--- Later in debate ---

Moved by

[Baroness Lister of Burtersett]

93: Clause 74, page 59, line 23, after “section” insert “(Controlling or coercive behaviour in an intimate or family relationship) or”
Member’s explanatory statement
This amendment is consequential on the proposed new Clause in the name of Baroness Lister of Burtersett that amends section 76 of the Serious Crime Act 2015.

--- Later in debate ---

Moved by

[Baroness Lister of Burtersett]

96: Clause 75, page 59, line 35, after “section” insert “(Controlling or coercive behaviour in an intimate or family relationship) or”
Member’s explanatory statement
This amendment is consequential on the proposed new Clause in the name of Baroness Lister of Burtersett that amends section 76 of the Serious Crime Act 2015.

Domestic Abuse Bill

Baroness Lister of Burtersett Excerpts

Report stage
Monday 15th March 2021 Lords Chamber

[Baroness Helic (Con) [V]]

My Lords, in speaking to Amendment 87 I will not repeat all my arguments from Committee, but I will reiterate two key points. First, it would allow us to ratify the Istanbul convention and, secondly, it relates primarily to access to services and is separate from the question of immigration control. I am grateful to the noble Baronesses, Lady Hussein-Ece and Lady Hamwee, and the noble and learned Baroness, Lady Butler-Sloss, for joining me in sponsoring the amendment, to all noble Lords who supported it in Committee and are supporting it now, and to End Violence Against Women and Southall Black Sisters for their invaluable assistance. I add my support to Amendment 70.

Amendment 87 would ensure that all victims of domestic violence, whoever they are, get the support they deserve. When a crime is committed, when a man or a woman is abused, we offer them help, compassion and justice as our first response, not as a final stage. Domestic abuse cannot be hidden behind discrimination. That principle is central to the Istanbul convention, which insists on non-discrimination, including on the grounds of migration status. This will be the only area of the convention left outstanding once the Bill has passed and there is every sign that it will remain unresolved for some time yet.

Nine years after we signed the convention, we seem to have no plan to ratify it. Ratification enshrines the substantive requirements while still allowing the detail to be developed by the Government. Alignment of the legislative framework can be an ongoing process but it is clear that an international commitment is a powerful statement of intent. It has great symbolic meaning: that we are committed to treating every victim with dignity and will take every incidence of domestic abuse seriously from the point of disclosure. Ratification would be a signal to other countries around the world. It would also be a ray of hope for victims in this country.

In Committee, the Minister pointed to the Government’s pilot project, the migrant victims scheme. I am concerned for two reasons. First, it misunderstands the crucial purpose of this amendment. The pilot is a way of deciding what specific support migrant women might need but the amendment is about establishing their fundamental right to support as victims. Those issues are related but they are not the same.

Secondly, as other noble Lords have already explained and specialist organisations repeatedly tell us, the migrant victims scheme seeks answers that we already know to problems that we can address today. It is an unnecessary delay that creates the appearance of action without any lasting resolution to the terrible situation faced by migrant victims of domestic abuse.

The history of the Bill should be a cautionary tale for all of us. It has taken more than two years to get to this point. Set that alongside the nine years since we signed the Istanbul convention, and I fear that if we do not take our chance to ratify it now, we may be in for a very long wait indeed. If we insist on delaying for the migrant victims scheme, we are saying that migrant women can have protection but only at some unspecified time years in the future. That is not good enough. The Government’s failure to lay out a timetable for ratifying the Istanbul convention only confirms that. I was especially concerned to hear suggestions that the convention could be ratified with reservations so that the Government did not have to address this issue. That would be a very bad outcome indeed, above all for the migrant women themselves.

There is a point of principle here about fulfilling our international commitments. There is also a practical point: the amendment would ensure that the migrant women who are at such great risk could access those services they need. I reassure those who might have concerns about immigration that the amendment would not affect immigration control; it would not require changes to immigration regulations or to the Government’s ability to control who comes to Britain and who gets to stay. However, it would offer protection from serious crimes to those who are here. If someone is attacked on our streets, we do not stop to check their passport before offering them assistance. Abuse behind closed doors should not be any different.

A non-discrimination amendment would mean that public authorities would be expected to take into account migrant victims’ needs when dealing with them or making strategic decisions. It would ensure that survivors could access the services they needed to protect them from harm. It would make sure that the Government’s stated desire to treat victims first and foremost as victims was a reality. It would guarantee that the provisions of the Bill truly worked for and applied to everyone, which they do not currently do, rather than just those lucky enough to be born in the right place. This can be the landmark Bill that we need, for which the domestic abuse sector, and victims and survivors of abuse, are calling, but it cannot do that while it ignores a section of society at serious risk.

I will close with the words of one migrant survivor. She was sexually abused by her ex-husband and other men before finding support from a refuge. She said, “The centre has allowed me to get independence. I have learned so much about life. I have joined college. I am learning every day and I am doing well. I have my autonomy back. I feel safe and less anxious about my future. I can now finally focus on getting help and getting better. I have met many women from different cultures and religions, and we live in harmony at the refuge. We go on courses together and help each other with the homework. We taste all sorts of food that we cook, and we share our lives, our experiences and hopes for the future. I love it here at the refuge. It is my home. It has honestly made a massive difference in my life.”

We have heard many difficult testimonies throughout these debates. This is a reminder of the hope that we can offer and of the power of support and dignity to transform women’s lives. That is what the Istanbul convention seeks to do; that is what the amendment can do. I hope that my noble friend the Minister can offer the necessary commitment on swift ratification.

[Baroness Lister of Burtersett (Lab) [V]]

My Lords, I wish to address just three issues in support of these amendments, which have been moved so powerfully. First, in Committee the Minister argued that the DDVC and domestic violence rule were designed to

“provide a route to settlement for migrant victims who hold spousal visas.”—[Official Report, 8/2/21; col. 98.]

The position of those who entered on other types of visa was addressed by the right honourable Theresa May on Report in the Commons. She took the point that generally they would have to show that they have independent financial support but noted that

“it is perfectly possible that they might find themselves in a relationship where the removal of that financial support is part of the abuse they are suffering. We have to take account of that as we look at this issue.”—[Official Report, Commons, 6/7/20; col. 712.]

I wonder whether the Minister has taken account of that.

Secondly, the Minister explained that

“we have worked with the sector to launch the support for migrant victims scheme.”—[Official Report, 8/2/21; col. 101.]

This is welcome and, as I said in Committee, it is to the Government’s credit that they revised the scheme in response to some of the criticisms of the draft prospectus. However, as already noted, it remains the case that the sector does not believe that such a scheme is necessary and has real concerns that the funding made available will not meet the needs of many of the women who will be seeking help from it. I asked in Committee whether it would be possible to at least suspend the “no recourse to public funds” rule for this group during the lifetime of the pilot. However, I did not get a direct response, so I would appreciate one now.

Thirdly, with regard to the Istanbul convention, the Minister noted that

“the position on whether the UK is compliant with Article 4(3) … to the extent that it relates to non-discrimination on the grounds of migrant or refugee status, and with Article 59, relating to residence status, is of course under review, pending the evaluation and the findings from the support for migrant victims scheme”—[Official Report, 8/2/21; col. 100.]

--- Later in debate ---

[The Deputy Speaker (Lord Alderdice) (LD)]

I have received a request to speak after the Minister, so I call the noble Baroness, Lady Lister.

[Baroness Lister of Burtersett (Lab) [V]]

I thank the Minister for her very full reply. She said, rightly, that I had pressed her and that there was no intention to park the issue, but what I really pressed her on was an assurance that there is no intention to enter a reservation to the Istanbul convention on the question of migrant women.

[Baroness Williams of Trafford (Con)]

My Lords, I can state quite honestly from my point of view that I know of no intention to enter a reservation.

Domestic Abuse Bill

Baroness Lister of Burtersett Excerpts

Report stage & Lords Hansard
Monday 8th March 2021 Lords Chamber

Moved by

[Baroness Lister of Burtersett]

10: Clause 8, page 5, line 29, at end insert—
“(7) Within one year of the passing of this Act, the Commissioner must publish a report under this section, which—(a) investigates the impact of Universal Credit single household payments on victims of domestic abuse; and(b) investigates and presents alternative options for the payment of Universal Credit single household payments that protect victims of domestic abuse.”Member’s explanatory statement
This amendment would place a legal duty on the Domestic Abuse Commissioner to investigate the payment of Universal Credit separately to members of a couple and to lay a report to Parliament.

[Baroness Lister of Burtersett (Lab) [V]]

My Lords, Amendment 10 heads up a group of amendments on social security which I will introduce, focusing on those in my name.

When I originally tabled them in Committee, I wanted to draw attention to the myriad ways in which the social security system undermines this Bill, particularly its very welcome inclusion of economic abuse. I and other noble Lords gave examples of how the social security system is letting down victims and survivors at every stage of the domestic abuse journey. I had hoped in response for some recognition from the Government of the tensions that exist between social security and domestic abuse policy, but no, so in light of this and the disappointment voiced by Refuge and Women’s Aid, to whom I pay tribute for their work and thank for their help, I decided that there was a case for revisiting these issues on Report. I am grateful to noble Lords who have signed the amendment.

I will not repeat the general case for why it is so important that social security policy supports rather than undermines domestic abuse policy, which underpins Amendment 68. This would require an impact assessment of any future social security reforms on domestic abuse victims and has been welcomed by the domestic abuse commissioner designate. In response to the amendment in Committee, the Minister pointed out that:

“The DWP is already obliged to consider the impacts of its policies through equality assessments, in accordance with the public sector equality duty.” —[Official Report, 27/1/21; col. 1703]


However, as this was the response given in the Commons, I had already explained that DWP equality impact assessments are very limited from a gender perspective and do nothing to assess, for instance, the impact on who in a couple controls resources, on the financial security and autonomy each enjoys, or on the ability to escape an abusive relationship. If the Government are serious about treating domestic abuse as a

“whole of government issue and response”, —[Official Report, 27/1/21; col. 1700]

as the Minister claimed, then it surely makes sense to carry out such an impact assessment at the design stage of social security reform.

Two other issues that I raised in this context were the training of jobcentre staff and the treatment of panic rooms in sanctuary schemes. On training, I very much appreciate the Minister’s helpful letter. I have shared it with Women’s Aid, which was involved in the early stages of the training and is very positive about aspects of it. However, there remain unresolved concerns and I would be grateful if the Minister could ask that the appropriate DWP Minister meet with Women’s Aid to discuss them.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

Yes, I can certainly request that on behalf of the right reverend Prelate.

[Baroness Lister of Burtersett (Lab) [V]]

My Lords, I thank all noble Lords who have spoken in this debate, and also the Minister. Noble Lords have enriched the arguments but, given the time, I will not go over what they said. I will not try to come back on the Minister’s arguments because it feels a bit like Groundhog Day. I am disappointed, however, that the noble Baroness did not acknowledge the point that I and my noble friend Lord Rooker underlined, as did others: there is a real tension between social security policy and domestic abuse policy. The policies that she is so committed to in this Bill will be undermined by DWP policies. I hope that at the very least she will take back to the DWP the concerns that have been raised today.

I thank the Minister for saying she will try to arrange for Women’s Aid to meet the DWP Minister to talk about training. As for panic rooms, will the noble Baroness have words with the Secretary of State for Work and Pensions about what has happened and why no action has been taken in response to that judgment? Time is ticking past—we really should have action by now.

My noble friend Lady Sherlock asked a couple of very specific questions about the Minister’s position, and I wonder whether she could write in response. I think I will leave it at that.

I take the point of my noble friend Lord Rooker that it would have been good to have been able to vote on this issue. However, there are so many amendments that noble colleagues want to vote on that I realise it was not possible. That should not mean that Ministers think we do not attach great importance to the arguments that have been made today. I just hope that the Minister will take those arguments to the DWP and see, behind the scenes, if something can be done. Having said that, I beg leave to withdraw the amendment.

Amendment 10 withdrawn.