Border Security, Asylum and Immigration Bill

Lord Alton of Liverpool Excerpts

Committee stage
Thursday 26th June 2025 Lords Chamber

I very much hope that the Opposition will be able to find it in their hearts to support this suggestion, because wherever you stand on co-operation with the EU, the fact is that we are talking about trying to nab the criminals, so it makes absolute sense. Of course, the TCA was negotiated by a Conservative Government, so I hope that trying to get good co-operation with Europol can be supported from all sides. As I said, I hope that the Minister will give a positive reaction to suggestions of making the border commander regularly meet the boss of Europol.

[Lord Alton of Liverpool (CB)]

My Lords, the noble Baroness, Lady Ludford, has given us a foretaste of the consideration we will give to Amendment 206, tabled by her noble friend Lady Hamwee and to which I have added my name, which is about Europol. I agree with what she said. I also agree with the interventions made by other noble Lords, including the noble Lord, Lord Dubs, who spoke on behalf of his noble friend Lord Browne, about the importance of consultation. Of course, I agree with what the noble Baroness, Lady Hamwee, said. She has no reason to fear; no one will ever accuse her of being pompous. She was right to remind us about the importance of the use of words, drawing our attention to “irregular” and “illegal”.

I will speak to Amendment 7, moved very ably by the noble Lord, Lord Cameron of Lochiel, on his behalf and that of his noble friend, the noble Lord, Lord Davies of Gower, which spells out what the duties of the commander should be in

“reducing the number of illegal migrant crossings, and … increasing the prosecutions of criminal organisations who facilitate illegal migrant crossings”.

In some ways it seems almost otiose to include this in the Bill, as those are clearly the main reasons why the Government brought it forward in the first place, but I understand the need sometimes to use Bills as a form of semaphore to send out signals and why the Opposition Front Bench might wish to do that.

As the Minister knows, I apologised for being unable to speak at Second Reading because a group of us from the Joint Committee on Human Rights, which I chair, were in Strasbourg to talk about, among other things, interpretations of Article 8 of the ECHR, prosecutions, the number of illegal crossings—as referred to in this amendment—and the criminal gangs manipulating and profiteering on the backs of often desperate people. During that visit, we met, among others, Tim Eicke KC, who has been the British judge in the European court for the past nine years. As noble Lords will know, the Government have put forward the names of three others who will take his place. I am glad to say that he has told me that he is willing to come to your Lordships’ House when he returns in September to share with us many of the experiences that he has had over these past nine years.

The European court and the Council of Europe are not our enemies; some of your Lordships were able to participate in the debate that I moved on behalf of the Cross Benches a few weeks ago on the European Convention on Human Rights—its origins, which we have been celebrating as it is its 75th anniversary, and its importance in this day and age. The Council of Europe and the European convention are inextricably linked. I wanted members of our committee to evaluate and understand that, because if one were to leave the convention it would mean also leaving the Council of Europe and disentangling ourselves from many of the things that I believe will help us ensure that the number of illegal crossings will be reduced and the number of prosecutions increased, because we have to do these things across borders and with our neighbours. If we do not, we will certainly not stem the staggering numbers of people leaving their homelands to make these dangerous crossings.

The Council of Europe and the court shared our concerns in all the discussions that we had. These are not our enemies. We discussed the exploitation and displacement of a staggering 122 million people—a number that has nearly doubled in the past decade. The number of refugees and persons in need of international protection reached over 42 million, while the number of internally displaced people rose to around 74 million. More than two-thirds of refugees originated from just six countries: Syria, Afghanistan, Ukraine, South Sudan, Sudan and Venezuela. A rough but telling extrapolation from these figures suggests that around one in every 67 people on earth has been forcibly displaced. These people are the shadow which hangs over our debate on this amendment and others today.

On 20 June, the Joint Committee on Human Rights published its report on this Bill. It runs to over 80 pages and I commend it to your Lordships. It is available in the Printed Paper Office. At paragraph 13, we remarked:

“It was not within the scope of this inquiry to look at wider issues such as the root causes of the refugee crisis or proposals for offering safe and legal routes to those in need of protection. Whilst this Bill focuses exclusively on tackling organised immigration crime, we encourage the Government to seek to address the underlying root causes which are fuelling the global refugee crisis”.


We cannot dodge that challenge. I strongly agree with the UNHCR, which, in its recent analysis of global trends, was emphatic that, for meaningful progress to be made,

“we must address the root causes”.

It is a point that I have repeatedly—perhaps some would say tediously—made in your Lordships’ House. Simply blaming international humanitarian law will not be part of the solution.

To be clear, the Joint Committee welcomes the Bill’s overall aims to deter organised crime and prevent loss of life at sea. Of course, we would therefore agree with the terms of this amendment as it is drafted. It is right that the Government do all they can to ensure that a legislative framework is in place to help eradicate this terrible and dangerous criminality, but we will not do that by diminishing our obligations to uphold international conventions and commitments.

The noble Lord, Lord Hanson, does an admirable job in his role at the Home Office and I join others in paying tribute to him. I have been deeply impressed by the work he does and it is good to have got to know him over the distance. The Minister knows as well as I do that, if offences are applied too broadly, refugees, victims of people smuggling and modern slavery are being put at risk of being criminalised rather than the smugglers. We have to help the victims as well as tackle the smugglers; it is not a question of one or the other. The Bill needs to target those who are profiting from organised immigration crime. The people they are exploiting need to be protected, but at present there is a risk that the most vulnerable are caught by some of the new offences. We are united in wishing to reduce the number of illegal crossings, but we are wary of enacting laws which could have unforeseeable consequences.

I will return to some of these points in later groups. I will try not to be repetitive—we have to make progress on this Bill. I welcome the debate we have had so far on this group and the spirit in which it has been conducted. It is admirable, and far better than some of the exchanges that we had in the previous Parliament, both in the Joint Committee on Human Rights and on the Floor of the House. I hope, as we proceed, that we will keep these two objectives in our sights: first, to tackle the illegality of those who are putting lives at risk on a daily basis and, secondly, the importance of protecting those who are so vulnerable.

[Lord Empey (UUP)]

My Lords, I apologise for not speaking at Second Reading, but I did attend the pre-brief that the Minister kindly gave to Peers.

On Amendment 71, tabled by the noble Baroness, Lady Ludford, I would be surprised if such meetings were not on the agenda of anybody holding the position. I have no difficulty with the concept of putting it in the Bill, but I assume it would be a routine level of co-operation that you would expect. However, if she feels it necessary to insist that it is in the Bill, I personally have no objection to it.

As I said to the Minister, my concern is not with the Bill itself but with what is not in it; that is my biggest worry. We have just heard figures about the international situation and, of course, we require an international negotiation to try to solve an international problem. That is why I am surprised that the Government are refusing even to talk to our allies about the 1951 refugee convention. I asked the Government last August and again a few weeks ago, and they refuse to enter into discussions with our allies on that. I would have thought it was a relatively sensible place to start, because the convention was created after World War Two and the world has changed. The problem is highlighted by what we have just been discussing. International aid is obviously another component and, of course, for economic reasons, we are moving in the opposite direction. There is a contradiction at the core of it all.

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We can dance on the head of a pin on the difference between irregular and illegal, but the general public out there do not get that. They are not interested, because the outcome is the same, as far as they are concerned. We know that there are differences, and we know we have international obligations, but we have to look at those obligations with the people we negotiated them with, because that is the only way you can change. If it is felt that change is necessary, you have to discuss with your interlocutors what those changes might be to bring things forward from post-World War II to the present circumstances we face.

[Lord Alton of Liverpool (CB)]

My Lords, I am grateful to my noble friend, who makes a really important point about the importance of looking again at the things we committed ourselves to in the circumstances in which those were signed. I reassure him that the Joint Committee takes that view too. While we were in Strasbourg, we discussed a letter which had just been sent by nine different Governments, led by Denmark and Donald Tusk’s Poland—which could hardly be regarded as being anti-international law or on the far right of politics—urging the Council of Europe and the European court to look again at the interpretation of things such as Article 8. I know that is the position of the Government, too. I hope that, as the Bill proceeds, we will hear more from the Government about what it actually is that they would like to see reformed.

[Lord Empey (UUP)]

I thank the noble Lord for his intervention. The Minister will be aware that, of course, the ECHR has particular connotations for me and Northern Ireland and how we negotiated the Good Friday agreement. Equally, how its terms are being interpreted, within the United Kingdom internally in particular, gives me cause for great concern. No agreement should be unable to be reviewed or looked at with life experience and the passage and flux of time. All I am saying is that the Government need to do both. The refugee convention of 1951 is another component part of it.

Coming back to the point about the powers of the commander, I believe it has to be the Government that set the strategic objectives. If we are not careful, we are also in danger of having too many cooks here. We have Border Force, this new organisation, the Government themselves, the police and all sorts of people involved, indeed including Interpol operating internationally. My anxiety about all of this is that successive Governments and Parliaments—we are all responsible—were all part of the business model of ruthless people who exploit and take money from unfortunate individuals who find themselves in difficult circumstances.

On the other hand, there are our own failings internally about our record-keeping. I do not believe that we really know who is in this country. We do not know how many Governments are putting potential sleeper cells into our country, and we do not really know who leaves and when. Boats are not the only method of irregularly or illegally getting into this country; the old-fashioned back of the lorry and other means are still there and have to be taken into account.

We have a huge task ahead of us, but I say to the Minister that the amendments tabled by the noble Lord, Lord Cameron, and others have substance. I do not see anything wrong with the amendment from the noble Lord, Lord Browne; it seems a reasonably sensible thing to do, and I would have no issues with it at all. However, I remind the Minister that, at the end of the day, the buck stops with the Government in setting goals, and it is within that that we should look at how a commander operates, because that person cannot simply exist in splendid isolation.

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[Baroness Hamwee (LD)]

I appreciate that this group looks rather indigestible, so let me put it in a different way. I will give the amendment numbers so that they are there in the Official Report and it is understood that they have to be read as packages, each relating to a different clause but on the same point. To Clause 13, as well as Amendment 29, I have Amendments 34, 36 and 37. To Clause 14, I have Amendments 40, 43, 45 and 48, and to Clause 16, I have Amendments 52, 54, 58, and 61.

Chapter 2 of this part of the Bill creates various new offences, and these amendments are addressed to what is an offence and what is a defence, and in brief, who has to prove what. As the clauses are constructed, there is an offence if, to take Clause 13, P supplies a relevant article, and P will have a defence if he/she/they show that they had a reasonable excuse. The explanatory statement puts it more elegantly than I could—I credit the Public Bill Office with this; the drafting defeated me, and it was extremely helpful. That is not saying that I do not take responsibility—of course I do. As the explanatory statement says, the amendment

“makes the lack of a reasonable excuse a component part of the offence of supplying articles for use in immigration crime, thus placing the burden of proof upon the prosecution”,

which, of course, is normally the way we do things in this country. If the supply is without reasonable excuse—the prosecution has to show this—P would not be prosecuted if he has a reasonable excuse. One would not start on that journey.

I am very uneasy that the burden is on P. Innocent till proved guilty should be the position, not the equivalent of guilty until proved innocent. I beg to move.

[Lord Alton of Liverpool (CB)]

My Lords, I am very happy to support this string of amendments, which has been introduced very digestibly by the noble Baroness, Lady Hamwee, and deals with the reverse burden of proof and reasonable excuse.

Earlier in our proceedings, I referred to the publication of the report by the Joint Committee on Human Rights last Friday. It deals at some length with these issues that the noble Baroness has laid before your Lordships. These amendments seek to strengthen the safeguards in these new offences. Paragraphs 20 and 25 to 28 of our report—to which I particularly draw to the attention of the Minister, the noble Lord, Lord Hanson—deal specifically with defences and the potentially reasonable excuses referred to in this group of amendments.

Clause 16 provides two defences, the first requiring the person to show that the

“action or possession was for the purposes of a journey to be made only by them”.

If it applies simply to the individual—and not, for instance, to couples travelling with children—it would be helpful if the Minister could tell us the estimates, and I accept that they can only be estimates, of how many channel crossings in small boats are made by one person travelling alone, how many by couples and how many by family groups. I understand that we might not be able to have that information in Committee, but if we could have it between now and Report, I would be very grateful.

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[Lord Jackson of Peterborough (Con)]

My Lords, I rise to speak to this group of amendments and, with the exception of the amendments in the name of my noble friends on the Front Bench, to oppose them. It is always a pleasure, of course, to follow the noble Lord, Lord Paddick, who brings great expertise to our proceedings.

I listened carefully to the noble Lord, Lord Alton, for whom I have great respect, but I have to say that I slightly disagree with him. I have read the report of the Joint Committee on Human Rights, and I feel that the committee’s report in respect of precursor offences is less than compelling, if I am quite honest. I know that the Government will be, to a certain extent, circumscribed because they are not required to respond to the report until August; I am sure we would have benefited in this debate had we had the Government’s response. Nevertheless, the Government have made their position clear—and I support them in this respect—that Clauses 13 to 16 will strengthen the ability of law enforcement agencies to tackle the supply chains for the people-smuggling networks, which I think is what we are all interested in doing.

Although the amendments tabled by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Alton, come from the right place and are well-meaning, the real-world impact of them is that they weaken the ability of the Government and the appropriate authorities to tackle people smuggling, because they significantly change the burden of proof in respect of evidence for criminal liability and culpability. That de facto reversal of proof is not in the public interest. So in some respects the result of these amendments being agreed would be pernicious and not in the public interest, and would militate against the strategic priorities of the Government that we support: smashing the gangs and reducing illegal migration.

I do not want to detain the House at this hour with a long discussion on what mens rea means, but it does mean “guilty mind”. There are different aspects—

[Lord Alton of Liverpool (CB)]

We will come to those arguments on mens rea. They are in later amendments. Perhaps the noble Lord would not want to jump ahead, because the groups of amendments dealing with that come in the next day in Committee on this Bill.

[Lord Jackson of Peterborough (Con)]

The noble Lord admonishes me for perhaps jumping slightly ahead, so I will revert to Clause 13 and put a question to the Minister. The honourable Member for the Weald of Kent in the other place, when considering the Bill in Committee, mentioned a potential loophole arising from the draft wording in Clause 13. I accept that, in terms of reasonable excuse, the Bill is caveated in that it is not a definitive position that you have no excuse whatever. It is right that, when you are dealing with individuals, even when they are involved in something as appalling as people trafficking and illegal migration, there should always be some discretion for the criminal justice system to exercise in adjudicating on their alleged offences.

However, there is a question to be asked about Clause 13(3) and the “reasonable excuse” caveat in terms of a loophole. Do the Government see that as problematic in terms of future litigation? I would not use the term “two-tier justice”, but certainly there is an element that speaks to the fact that, if you do not charge for services and you are seeking to rescue a person, that absolves you of criminal responsibility. There is an argument that that sends out a message.

My problem with this group of amendments is that they reduce the push factor and increase the pull factor. Those will be the real-world consequences of making it easier for people to argue that they have a reasonable excuse and did not possess an intent to commit these new offences. So, on this occasion, I will probably agree with the Minister that the House should resist the amendments.

I also pray in aid the example that the Immigration Minister, Angela Eagle, used in the other place. She prayed in aid the case in November 2024 of Amanj Hasan Zada, who organised cross-channel boat crossings from his home in Lancashire. He was jailed for 17 years after being found guilty on people-smuggling charges. It was very much the view of the National Crime Agency and others that, had the proposals contained in the Bill been in place, he would have been brought to justice much earlier, and that it was only because the authorities, particularly the NCA, did not have the ability to use the full force of law in respect of the legislation obtaining at the time that he was not stopped from his abhorrent activities at an earlier juncture.

I finish by saying that we all wish to see fair play and due process. We all want a legal system that does not discriminate on the basis of race, background, ethnicity, religion, and so on, but, equally, we have to be realistic, practical and pragmatic. In the real world, we need to reduce the pull factor and increase the push factor. I think these amendments would do exactly the opposite and, for those reasons, I hope the Committee is not minded to support them.

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[Lord Alton of Liverpool (CB)]

I had asked the Minister about compliance with Article 31.

[Lord Hanson of Flint (Lab)]

The noble Lord’s report has been very helpful. We need to look at that issue, and we will respond to his report in short order. I cannot give him those details today, but I will ensure that they are dealt with in due course.