Overseas Operations (Service Personnel and Veterans) Bill

Lord Alton of Liverpool Excerpts

Report stage
Tuesday 13th April 2021 Lords Chamber

[Lord Robertson of Port Ellen (Lab) [V]]

My Lords, Amendment 3 is in my name and that of the noble Lord, Lord Alton, and my noble friends Lord Campbell and Lord West. The amendment will provide that the presumption against prosecution does not apply to war crimes, crimes against humanity, genocide and torture.

Maybe after a lifetime in politics I was affected by some uncharacteristic naivety in thinking that the Government, faced by almost universal and expert opposition on this aspect of the Bill, would by now have changed their mind. Reasonable and knowledgeable people can only be dismayed by the obduracy of Ministers in this situation, and it is why there is a more than normal responsibility on this House to ask the Commons to look again, reflect and change the Government’s mind, before lasting and serious damage is done to the interests of our Armed Forces and the reputation of this country.

The objective of the Bill is clear and understandable: it is to protect our troops in foreign operations from vexatious prosecutions. Who could reasonably object to that? Certainly not me. But sadly, the Bill does not do what it claims to do and instead actually harms those whom we seek to protect. At best it would prevent only 1% of prosecutions, but it would not prevent seemingly endless investigations. Not only would this legislation not do what it claims to do but it would single out our Armed Forces for a privileged protection previously unknown in British law—what the Law Society, in its submission to us today, calls a “quasi-statute of limitations”.

For the first time in the history of British law we would be creating a two-tier justice system in which troops acting for us abroad would be treated differently from other civilians in society. That is serious enough, and alone should make Ministers worry about what they are embarking on, but, additionally, by saying that there is a presumption against prosecution for the most serious of all crimes—namely genocide, crimes against humanity and torture—the Bill undermines some of the most basic international legal standards for which this nation was renowned.

It does not end there. As a result of this quasi-statute of limitations, our troops might, for the first time, have to appear in front of the International Criminal Court. The chief prosecutor of the ICC, Mrs Fatou Bensouda, has said that

“were the effect of applying a statutory presumption be to impede further investigations and prosecution of crimes allegedly committed by British service members … the result would be to render such cases admissible before the ICC”.

The next chief prosecutor of the ICC is a British nominee, Mr Karim Khan, and the irony might be that among his first cases could be a British one.

Like so many of my predecessors as Defence Secretary or NATO Secretary-General, in these positions I had to take weighty decisions about foreign deployments and sending people into harm’s way. These were never easy or lightly thought decisions, and there were many sleepless nights involved. No one should underestimate my feeling when I say that I believe that this Bill is bad for our troops, bad for our British legal system and very bad for our national reputation.

I ask the Minister today to reflect for a moment on a few additional factors. First, there was unanimous criticism from the noble and gallant Lord, Lord Craig, the noble Lord, Lord Dannatt, and my noble friend Lord West, in the last debate that we had. Field Marshal Lord Guthrie, former Conservative Defence Secretary and Foreign Secretary Sir Malcolm Rifkind, and former Conservative Attorney-General Dominic Grieve, have all publicly opposed this measure. What about General Sir Nick Parker, former commander of British land forces, who urged Ministers not to damage the reputation of British Armed Forces overseas? Then there is Bruce Houlder QC, a former Director of Service Prosecutions, who told the Financial Times that the five-year limit would be “an international embarrassment”. On top of all these salvos, just yesterday the UN High Commissioner for Human Rights, Michelle Bachelet, issued a statement of real significance, saying that this Bill

“in its current form, risks undermining key human rights obligations that the UK has committed to respect.”

I remind the House of the report of the non-partisan committee of both Houses of the British Parliament, the Joint Committee on Human Rights, which considered this Bill and said that

“we have significant concerns that the presumption against prosecution breaches the UK’s legal obligations under international humanitarian law (the law of armed conflict), international human rights law and international criminal law. It risks contravening the UK’s obligations under the UN Convention Against Torture, the Geneva Conventions, the Rome Statute and international customary law.”

Those are devastating comments.

Perhaps, in my naive hopefulness, I allowed myself to think that no Government, still less one ostensibly committed to the interests of our Armed Forces, would pursue a measure which would harm them, their reputation and the reputation of our country as a stalwart upholder of the highest international legal standards. That is why I hope that now, at the last minute, the Minister will recognise the forces of reason arrayed against her and, in good military parlance, make a tactical retreat. I beg to move.

[Lord Alton of Liverpool (CB) [V]]

My Lords, I am a signatory to the amendment tabled by the noble Lord, Lord Robertson of Port Ellen. I wholeheartedly endorse his comments. He has made the case so well, having spoken with all the advantage and experience of high office in government and NATO, that I can be relatively brief.

In Committee, the noble and learned Lord, Lord Falconer of Thoroton, pointed, as the noble Lord, Lord Robertson did, to the broad coalition inside and outside this House which spans from well-experienced military personnel to the United Nations, human rights charities and former Defence Secretaries. Those diverse voices have cogently argued that we should extend the exclusions from the presumption to cover genocide, torture and crimes against humanity. Echoing those concerns when speaking earlier today on a previous amendment, my noble and learned friend Lord Hope of Craighead also set out some of the compelling reasons why the House should support Amendment 3.

I will say a few words about the crime of genocide. Following the overwhelming support which the House gave to the all-party amendments on genocide that I recently moved to the Trade Bill, the House will have noted that many of the same arguments advanced during those debates about strengthening the rule of law also apply to Amendment 3.

Reflect for a moment that the International Criminal Court’s prosecutor has urged the United Kingdom

“to ensure that the exemption clause extends to all crimes within the jurisdiction of the Court”.

Are we seriously going to ignore this admonition? What calculation have we made of the reputational damage and the danger of being accused of being Janus-faced when we call out genocide in places such as Xinjiang, against the Uighurs, or Myanmar, against the Rohingya, but do not hold ourselves to the same stringent test?

Showing contempt or disdain for the ICC is something that we usually associate with authoritarians and dictators. We should be leary of being found in such disreputable company. It also stands in stark contradiction to the vaunted claims in the integrated review that the United Kingdom will be a world leader in promoting British values and a rules-based international order. Global Britain will be measured by its actions and not as a slogan.

The ICC’s chief prosecutor has said that, as this Bill stands, the result would be to

“render such cases admissible before the ICC”,

and that the UK would

“forfeit what it has described as its leading role, by conditioning its duty to investigate and prosecute serious violations of international humanitarian law, crimes against humanity and genocide on a statutory presumption against prosecution after five years.”

As we have just heard from the noble Lord, Lord Robertson, the United Nations Commissioner for Human Rights, Michelle Bachelet, added her voice only yesterday, urging us, as parliamentarians, to heed warnings that, in its current form, the Bill risks undermining key human rights obligations that the United Kingdom has committed itself to respect. She urged us to ensure that the law

“remains entirely unambiguous with regard to accountability for international crimes perpetrated by individuals, no matter when, where or by whom they are committed”.

She went on to pay tribute to our courts and what she called

“the independence and fairness for which they are known around the world”.

She urged us to maintain and strengthen our judicial approach to atrocity crimes—to strengthen, rather than diminish, their standing and reputation.

UN Mission in Mali: Armed Forces Deployment

Lord Alton of Liverpool Excerpts

Monday 14th December 2020 Lords Chamber

[Baroness Goldie (Con)]

The last part of my noble friend’s question encapsulates why the United Nations is there and why we are proud to make to our contribution to that mission. Our force may be 300, but that is part of a force of thousands, reflected by the other contributors to the mission. My noble friend is quite correct: there is a challenge—we do not diminish that—but it is best addressed in partnership with like-minded nations working together. Acting under the umbrella of the United Nations is a constructive and positive way in which to do that.

[Lord Alton of Liverpool (CB)]

My Lords, on March 12, in evidence to the inquiry on sub-Saharan Africa of the International Relations and Defence Select Committee, which has been referred to already, General Sir Richard Barrons said that the UK’s role in MINUSMA, the UN peacekeeping mission in Mali, was

“not in support of a strategy of any kind other than ‘We should do a bit more UN peacekeeping’”.

When the noble Lord, Lord Ahmad, answered my Question on 17 June, he said that our strategic approach would

“help tackle the underlying causes of poverty and conflict in the region”

but he said nothing about the role of jihadists from both al-Qaeda and Isis, who have been referred to by a number of noble Lords. What has changed since General Barrons made his remarks in March about the lack of a strategy? Given the history of jihadism in Mali, including terrible attacks on women and the destruction of Sufi monuments in Timbuktu, will the Government be clear about who and what we are fighting in Mali and why, and reflect on the dangers of mission creep?

[Baroness Goldie]

I go back to what we are doing and why we are there. We are part of this United Nations mission. It is important to remember the umbrella character of that mission. I fully agree with the noble Lord that mission creep would be undesirable, but there is a minimal risk of that happening for the reasons which I stated earlier. This is a mission for our UK deployment of finite time—it is three years; there will be a review after 18 months. It is a fixed number of personnel; it is a peacekeeping mission—our role is one of reconnaissance. There are therefore clear boundaries round what we are doing there. That is not to say that our presence is ineffectual or not capable of achieving anything substantive—I would totally disagree with that as an assessment. As part of this broader commitment organised by the United Nations, we are contributing to addressing the issues which have made the country so challenging and dangerous. The noble Lord is quite correct. I do not seek in any way to diminish the threat, the dangers or the difficulties—they are real and they are there—but I am proud to say that, in so far as the United Kingdom is concerned, we have highly-trained, very capable and professional soldiers. I am confident that they will make a singular and important contribution to the broader objectives of the mission.

Covid-19: Security Risks

Lord Alton of Liverpool Excerpts

Tuesday 19th May 2020 Lords Chamber

[Baroness Goldie]

In relation to NATO in particular, we are a principal contributor of funding to support efforts against misinformation by using cyber intelligence to counter it. On the specific question of what the Government are doing, it crosses a range of activity beyond the MoD. My noble friend will be aware that there has been leadership from the Prime Minister downwards, seeking to call out disinformation and misinformation for what it is, and we all have a role to play in doing that.

[Lord Alton of Liverpool (CB)]

My Lords what consideration are the noble Baroness and NATO giving to a new report which reveals that members of the Five Eyes are strategically dependent on China for 831 separate categories of imports, of which 260 involve elements of critical national infrastructure?

[Baroness Goldie]

NATO and the member partners always have an interest in reliance on export and import sources. Obviously, it is for individual nation states to determine how and with whom they trade. We have to recognise that that is a necessary freedom in the free flow of trade internationally.

Queen’s Speech

Lord Alton of Liverpool Excerpts

Tuesday 7th January 2020 Lords Chamber

[Lord Alton of Liverpool (CB)]

My Lords, I congratulate the noble Baroness, Lady Ritchie of Downpatrick, on her maiden speech. I should declare at the outset that I am a patron of Hong Kong Watch and visited Hong Kong in November to monitor the election and that last month I visited Kurdistan and northern Iraq.

Because of time constraints, I have given the Minister notice of several questions relating to Hong Kong, including evidence given in the House by Dr Darren Mann about attacks on and the arrest of medics there, which he says

“amount to grave breaches of international humanitarian norms and human rights law”,

the potential use of Magnitsky powers and a request for an assessment of the post-election situation in Hong Kong.

In the light of events in Iraq, I will use my few minutes mainly to speak about the role of Iran and the increasing belligerence and confidence of new insurgent militias. For 40 years, Iran has been responsible for proxy terrorism, hostage taking and egregious violations of human rights. Thousands of Iranians have long since seen through this theocratic terror state and have been publicly protesting against its leaders, while in Iraq more than 400 people have been killed while campaigning for a more open and democratic and less corrupt Government no longer manipulated by Iran.

Many people I met told me that Iranian Shia proxies and the re-emergent sleeping ISIS cells with Sunni affiliations will ruthlessly oppose any change and endanger the remarkable achievements of the Kurdish Regional Government, who have valiantly protected both Kurds and the minorities. In the north of Iraq, especially in Irbil, the KRG, whose parliamentary Speaker and Deputy Speaker I met, have created a glimpse of what a peaceful Iraq and a wider region respectful of difference and diversity could look like. I visited some of the multi-ethnic villages being rebuilt on the Nineveh plain, but Iran has already mobilised Shabak proxies, endangering the reconstruction of ancient Yazidi and Christian settlements such as Bartella, and is trying to create a destabilising Iranian canton strategically wedged between Kurdistan and Mosul. The parallel re-emergence of ISIS in northern Iraq’s Hamrin and Qara Chokh mountains led, in December, to the deaths or injury of more than 30 brave Kurdish Peshmerga soldiers, while its ISIS affiliate in Nigeria beheaded 11 Christians in retaliation for the demise of Abu Bakr al-Baghdadi.

The signal failure of the international community to bring genocidaires such as Baghdadi or men such as Qasem Soleimani to justice or to challenge countries that arm proxies or bomb civilians creates a culture of impunity and erodes a rules-based international order. I saw the consequences of impunity at Bardarash refugee camp where, in increasingly cold weather, tents and makeshift shelters in a desolate location have replaced homes bombed by Turkish—that is, NATO—planes. Thousands of people who, until weeks before, had successfully supported themselves and their children, now queue up for rations, handouts and medical help. In Bardarash, a mother of four told me that, “As they dropped their bombs and chemicals many children were burnt. Some were killed. I just want to go home with my children, but everything was destroyed, and we would be slaughtered.”

When did it become acceptable to break the Geneva conventions, and potentially the Chemical Weapons Convention, illegally occupy territory, ethnically cleanse a population and face no investigation, little censure, no Security Council resolution and no consequences? What outrage must a NATO country commit before we declare it to be unfit for membership let alone seek its referral to the International Criminal Court?

If the rule of law is a casualty of international impotence, consider the phenomenal human consequences. A staggering 70 million people have been forcibly displaced, with 37,000 people forced to flee their homes every single day, while 17 years is the average length of time spent in a camp by a refugee. These camps are the perfect recruiting grounds for the exploitation of despair, hopelessness and betrayal. Bardarash is a symbol of the breakdown of global leadership.

In asking the Minister how we intend to fill this vacuum, I would also welcome her response to questions I have sent her about memorialising the Simele genocide site and the request of Baba Sheikh, the spiritual leader of the Yazidis, who I met, concerning the 3,000 still-missing Yazidi women. Genocide survivors from Mosul and Sinjar told me that they had never been approached by British or international agencies to give their evidence. How will trials ever take place if we fail systematically to collect witness statements?

There can be no lasting peace and reconciliation without justice and the rule of law, which is why a central plank of our approach must be the creation of a regional court to try those responsible for war crimes, crimes against humanity or genocide. Until we do, I echo the noble Marquess, Lord Lothian, when I say that lawless militias and proxies will go on behaving with impunity and retaliatory assassinations and killings will be the order of the day, with unpredictable consequences for people who have already experienced appalling suffering and persecution.

Syria: British Armed Forces

Lord Alton of Liverpool Excerpts

Thursday 24th October 2019 Lords Chamber

[Baroness Goldie]

Let me reassure my noble friend without any ambiguity or ambivalence that the answer is yes. Daesh is the focus of our activity. I said earlier that Daesh is a lethal, toxic entity, and we owe it to the safety and security not just of the United Kingdom but of our friends and allies throughout the world to play our part in addressing that threat.

[Lord Alton of Liverpool (CB)]

My Lords, having said that, has the noble Baroness had a chance to read the report in this morning’s Times by Anthony Loyd that the ISIS flag has again been flying above the al-Hawl camp where 68,000 family members of ISIS are held? Has she also yet had a chance to evaluate the list that I sent to her department naming jihadists who are now fighting alongside the Turkish army? Where does this leave the fight against terror and Turkey’s membership of NATO, as well as our obligations to bring those who are responsible for this genocide against minorities, both in northern Iraq and north-east Syria, to justice?

[Baroness Goldie]

I am aware of the noble Lord’s earlier inquiry and, if he will permit me to do so, I shall respond to him in more detail. I said earlier that these are turbulent, difficult and unpredictable times. The United Kingdom is clear that we must be consistent and resolute in our approach to these difficult circumstances. I emphasise that the focus of our activity is, if we can, to assist in a political solution within Syria but also, unequivocally, to deal with the continuing threat posed by Daesh.

Counter-Daesh Update

Lord Alton of Liverpool Excerpts

Tuesday 7th November 2017 Lords Chamber

[Earl Howe]

My Lords, I am sure that my noble friend’s comments will resonate with many noble Lords. Approximately 850 UK-linked individuals of national security concern have travelled to engage with the Syrian conflict. That flow of British citizens has diminished considerably, but clearly there is a risk that some will attempt to return to this country. Our position is that, wherever possible, anyone fighting for Daesh should be brought to justice and that a decision to prosecute an individual suspected of fighting for Daesh should be taken by the relevant competent authority. Our policy is that terrorist fighters should be held to account by the states on whose territories their crimes have been committed. We would offer support to any such prosecution, so far as we were able. I reassure my noble friend that all returnees to this country will be investigated where that is considered appropriate.

[Lord Alton of Liverpool (CB)]

My Lords, in welcoming the role that British officials played in the drafting of Resolution 2379 which, as the noble Earl told us, was passed on 21 September by the Security Council, may I press him on two or three details about that resolution? For instance, concern has been expressed about the absence in the resolution of explicit reference to the 120,000 Christians who were displaced from the plains of Nineveh, and to the Yazidis who were displaced from Sinjar. Will they come within the scope of the inquiry and will those particular displacements feature in it? The resolution also says that Daesh fighters will be prosecuted in Iraq’s national courts—but, as Iraqi law contains no provisions on genocide, crimes against humanity or war crimes, how will that be done? Does the investigative team have the necessary capacity to collect evidence that meets the required standards?

Have the Government given proper consideration to whether a specialised regional tribunal, such as that used in Cambodia, would be a better way of dealing with this, rather than going to a national court that clearly does not have the capacity, the powers or the proper jurisdiction? Given that a veto might well have been used against a referral to the International Criminal Court, would a regional tribunal not have been a better way to go about it?

[Earl Howe]

My Lords, I will take advice on the noble Lord’s very constructive suggestion. I do not know the answer to his question but I will ensure that he gets one. Clearly, we want to see mechanisms that are fit for purpose in this context. We are all aware that there have been horrific cases of attacks on religious communities by Daesh. We are working with the Iraqi Government, the United Nations and the international community to support the protection of the rights of all minorities. That includes making sure that those who are responsible for these atrocities are brought to justice. We prioritise reaching the most vulnerable people across the region, including Christians, of course, and others who have suffered from such violence. I have already mentioned children, in particular, in that context.

It is probably right for me to leave it there. My understanding is that the United Nations Security Council is confident that the structures it has set up will deliver the necessary degree of justice and accountability —but I think the noble Lord is owed further and better particulars on that front.

Genocide

Lord Alton of Liverpool Excerpts

Monday 26th June 2017 Lords Chamber

Asked by

[Lord Alton of Liverpool]

To ask Her Majesty’s Government what action they are taking, in collaboration with the International Criminal Court, or through the creation of appropriate tribunals, to bring to justice perpetrators of genocide, war crimes, and crimes against humanity.

[Baroness Goldie (Con)]

My Lords, international criminal justice and accountability is a fundamental element of our foreign policy. The United Kingdom firmly believes that there must be no impunity for the most serious international crimes. We provide financial and political support to the International Criminal Court and other international tribunals. With our international partners, we also fund efforts to gather and preserve evidence that could be used by courts to bring perpetrators of these crimes to justice.

[Lord Alton of Liverpool (CB)]

My Lords, I thank the noble Baroness for that helpful reply. Will she confirm that it is now 14 months since the House of Commons designated the atrocities in Iraq and Syria—committed against Yazidis, Christians and other minorities—to be a genocide, this crime above all crimes? What progress has been made in collecting court-ready evidence and in referring those responsible to the International Criminal Court, to which she referred, or to a regional tribunal? If accountability and justice in countries such as Iraq, Syria, Sudan and North Korea are to be credible, should we not be giving this matter greater priority and urgency to ensure that we see no compromising of the gold standard of the ICC?

[Baroness Goldie]

I thank the noble Lord. He raises an important point and I reiterate that the United Kingdom’s support for international criminal justice is based on the principle that there must be no impunity for genocide, war crimes and crimes against humanity. The International Criminal Court has been making good progress, as the noble Lord is probably aware, in the prosecution of persons alleged to have committed crimes. Indeed, 2016 was the court’s most productive year for judicial output, with seven convictions in three cases.

In relation to the gathering of evidence from Iraq and Syria, the UK provides financial support to a specialist organisation to conduct investigations in Syria and build prosecution-ready criminal case files against the high-level perpetrators, in accordance with international standards. The noble Lord may be aware that last year the United Kingdom funded a project through our Magna Carta fund to improve the documentation of sexual violence and other gender-based cases in a victim-sensitive way in several areas of Iraq. That has assisted in the development of cases in which so many women from, for example, Christian and Yazidi communities have suffered.

Immigration Bill

Lord Alton of Liverpool Excerpts

Tuesday 26th April 2016 Lords Chamber

Moved by

[Lord Alton of Liverpool]

At end insert “, and do propose Amendment 59B in lieu—

59B: Insert the following new Clause—
“Asylum seekers: permission to work after nine months
(1) The Immigration Act 1971 is amended as follows.
(2) After section 3(9) (general provisions for regulation and control) insert—
“(10) In making rules under subsection (2), the Secretary of State must provide for persons seeking asylum, within the meaning of the rules, to apply to the Secretary of State for permission to take up employment, including self-employment and voluntary work.
(11) Permission to work for persons seeking asylum must be granted if—
(a) a decision has not been taken on the applicant’s asylum application within nine months of the date on which it was recorded, or
(b) an individual makes further submissions which raise asylum grounds and a decision on that new claim or to refuse to treat such further submissions as a new claim has not been taken within nine months of the date on which the submissions were recorded.
(12) Permission for a person seeking asylum to take up employment shall be on terms no less favourable than those upon which permission is granted to a person recognised as a refugee to take up employment.””

[Lord Alton of Liverpool (CB)]

My Lords, the noble Earl just told the House that he believes the Government’s position strikes the right balance. I hope that, in some fairly brief remarks, I can convince the House that that really is not so.

Unfortunately, because of the procedural timetable used in another place yesterday, it is impossible to find in Hansard any reference whatever to the extensive Committee and Report stage debates we had in your Lordships’ House, and the arguments made in favour of the six-month provision incorporated in the amendment passed by your Lordships’ House. It is therefore very difficult to know on what basis the Government have rejected both the six-month amendment and the amendment tabled today, which is an attempt to move a little further in the Government’s direction.

I am, therefore, disappointed that that truncated debate in another place led to the rejection of this proposal. To ask the other place to give further consideration, I have modified the amendment by inserting nine months instead of six. Before turning to its rationale, I declare my non-financial interest as a patron of Asylum Link Merseyside.

The amendment would grant asylum seekers permission to work if their claim has not been determined within the Home Office’s target time of nine months. I will briefly address the arguments made by the Government against the amendment. They have said that the policy will lead to an increase in unfounded applications. In Committee, the noble Lord, Lord Ashton, who is in his place, in responding for the Government repeated their long-held position:

“Earlier access to employment risks making asylum more attractive for those who are otherwise not eligible to work in the UK”.—[Official Report, 20/1/16; col. 851.]

However, the Government themselves have conceded that it “may be broadly true” that,

“there is little hard evidence that the change you propose (to allow asylum seekers to work after six months) would result in more asylum applications”.

So nine months would have even less impact on applications, if that is so. In fact, all the available evidence suggests that permission to work does not act as a pull factor for asylum seekers. That is reflected in the Home Office’s own research, and was confirmed by a review of the 19 main recipient countries for asylum applications in the OECD in 2011, which concluded that policies which relate the welfare of asylum seekers—for example, permission to work, support levels and access to healthcare—did not have any significant impact on the number of applications made in destination countries.

A total of 24 European Union countries allow asylum seekers to work after nine months or less if a decision has not been made on their asylum application, so what I am proposing is hardly revolutionary or without precedent. Twelve of these countries allow asylum seekers access to the labour market after six months or less of waiting for a decision on their claims. Those countries are Austria, Belgium, Cyprus, Finland, Germany, Greece, Italy, the Netherlands, Poland, Portugal, Spain and Sweden. The vast majority of these countries have had these policies in place for many years and none of them has had to change the policy because of any abuse of the asylum route by economic migrants.

In reality, those motivated to come to the United Kingdom for economic reasons are unlikely to make an asylum application and bring themselves to the attention of the authorities on the basis that they might be able to apply for permission to work after nine months. It does not make any sense, if you think about it. Even if this were the case, they would never have an opportunity to do so as the Home Office decides all straightforward claims within six months. Anyone making an unfounded claim for asylum would probably have this dealt with in a matter of weeks rather than months. It should be stressed that applicants cannot manufacture delays by—

[Lord Lansley (Con)]

I am very grateful to the noble Lord for giving way. In response to a Written Question that I tabled in March, I was told that in 2015 of a total of 10,199 asylum claims concluded after six months, fewer than half were well founded. Therefore, the majority of those who are seeking asylum and would therefore be eligible for work after six months on the original amendment would not have made well-founded claims, and so would not have had a reason legitimately to be in this country in the first place.

[Lord Alton of Liverpool]

My Lords, if they do not have legitimate reasons to be here, they will be deported in the normal course of events, so that argument does not stack up against the amendment, which encourages people to work rather than rely on state benefits. In other words, it encourages them to do what the noble Lord and Members on his Benches urge people to do—namely, to use their own efforts and resources to pull themselves up by their bootstraps to play their part in society. The figures that the Government gave me in reply to the earlier debates was that at the end of 2015 more than 3,600 asylum seekers were still waiting for more than six months for an initial decision on their claim, and that was despite the assurance that the noble Lord, Lord Ashton, gave that delays that have happened before have been brought under control.

Returning to my remarks before the intervention, it should be stressed that applicants cannot manufacture delays by not engaging with the process, as they will have their claims refused for non-compliance.

The Government have defended their current policy, which effectively prohibits asylum seekers from working on the basis that asylum seekers are,

“provided with support and accommodation while we determine whether they need our protection and until they have exhausted the right of appeal”.—[Official Report, 20/1/16; col. 843.]

Those words, used by the noble Earl, Lord Attlee, in 2014, were quoted in the Chamber on 20 January. While it is true that asylum seekers are supported, it is highly questionable whether the level of support provided is adequate, as asylum seekers receive just over £5 a day to meet their essential living needs for food, clothing, toiletries and transport to pursue their asylum application. Of course, housing and utility bills are paid for separately for those who need it. An asylum seeker spends an average of around 18 months on Section 95 support. Many asylum seekers who have to survive solely on this level of support for extended periods will suffer a negative impact on their mental and physical health. At the end of 2015, more than 3,500 asylum seekers were still waiting for adjudication and settlement of their cases. In its most recent report on the work of the immigration directorates, the Home Affairs Committee stated that it was,

“concerned that the department may not be able to maintain the service levels that it set itself on initial decisions for new asylum claims within six months. To do so may require further funding and resources”.

Perhaps the noble Earl will comment on that finding in his response.

I have tried to move in the direction of noble Lords who have expressed concern and this is a compromise amendment. It means that the Government would have to significantly miss their target timeframe of six months for making an initial decision on an application before an asylum seeker would be given permission to work. For the small number of people affected, this would be a route out of poverty and an opportunity to restore their dignity by providing for themselves rather than leaving them dependent on handouts from the Government.

Is the current policy fair and proportionate? Is it balanced, in the way that the noble Earl suggested in his preliminary remarks? In Committee, the noble Lord, Lord Ashton, said:

“The Government believe that the current policy strikes the right balance. If a claim remains undecided after 12 months for reasons outside their control, the person can apply for permission to work. That is fair and reasonable policy and is consistent with our obligations under EU law. It also assists genuine refugees”.—[Official Report, 20/1/16; col. 851.]

The question is: does the Government’s current policy strike the right balance? As matters stand, the UK Government effectively prohibit asylum seekers from ever working, because after 12 months they can apply only for jobs on the shortage occupation list, which are the skilled jobs where there is an identified national shortage. Even if an asylum seeker had the requisite skills for such a job, it is unlikely that they would be able to secure it, as they would have to have their existing qualifications recognised and they may well have become deskilled in the year or more that they have been unemployed. An extended period of exclusion from the labour market can have a long-term impact on a refugee’s ability to find employment. It is no wonder that a cross-party parliamentary inquiry into asylum support for children and young people noted, in January 2013:

“Asylum-seeking parents are prevented from working, leaving families dependent on state support. This means parents are left powerless and lose their skills while children are left without positive role models. The Government’s own research has highlighted that this can lead to high levels of unemployment and under-employment once a family gains refugee status”.

I agree with that.

Early access to employment increases the chances of smooth economic and social integration by allowing refugees to improve their English, to acquire new skills and make new friends and social contacts in the wider community. All of this helps to promote community cohesion. The vast majority of asylum seekers want to work and contribute to society. They are frustrated at being forced to remain idle and dependent on benefits. Pulling yourself up by your own bootstraps, reducing reliance on the state and reinforcing the principle that we have a duty to work and contribute to society should appeal to all noble Lords, on whatever Benches they sit. The potential financial savings from allowing asylum seekers to work include reduced asylum support costs and increased tax revenue. In addition, asylum seekers will have increased disposable income which they can then spend in the wider economy. There will also be a number of indirect financial savings for statutory and voluntary agencies, including the avoidance of increased physical and mental health problems and the consequential financial cost to the National Health Service.

In conclusion, granting permission to work to asylum seekers who have been waiting for an initial decision for more than nine months will help to avoid the negative impact on asylum seekers of prolonged, forced inactivity and impoverishment and allow them to contribute to the economy. This will deliver financial savings to the Government and taxpayer, as asylum seekers who are working will not need to be supported. Allowing asylum seekers who have been waiting nine months for a decision on their cases to work has all of the benefits that I have been describing. The original amendment, on six months, was supported in your Lordships’ House. In the absence of a debate in another place on that amendment, it is right for this House to press on with this principle today, to give the other place the chance to consider the merits of the argument properly and come to a considered conclusion. I hope those arguments will commend Amendment 59B to the House. I beg to move.

--- Later in debate ---

[Earl Howe]

My Lords, Amendment 59B, proposed in lieu of Amendment 59, while slightly less radical than the earlier amendment, would still mean fundamental changes to the government policy of restricting permission to work to those who have been awaiting a decision, through no fault of their own, for 12 months. As the noble Lord reminded us, those allowed to work are restricted to jobs on the shortage occupation list introduced in the last Parliament. As I indicated earlier, the Government believe that this is a fair and reasonable policy, and we believe that because of the need to ensure that access to jobs is prioritised for British citizens and those with leave to remain here—including, importantly, refugees.

The new amendment would not only allow asylum seekers to work after only nine months; it would also remove the important caveat that any delay must not be of the asylum seeker’s own making. This would benefit those who are responsible for delaying a decision on their claim and purposely frustrate the asylum process simply to gain permission to work or to avoid removal. It would also benefit individuals whose cases were complex for perfectly good reasons, such as those accused of serious criminal acts, including war crimes, where there is an inescapable imperative to investigate the facts before reaching a decision. It would also allow unrestricted access to the labour market—that is to say, not just to jobs on the shortage occupation list—regardless of the interests of British jobseekers. It is a recipe for a free pass into the UK employment pool and that really is not fair to British people competing for the same jobs. In making policy in this area, we have a duty to consider how such policy impacts on society as a whole, not just on asylum seekers.

The noble Lord, Lord Alton, rather dismissed the arguments rehearsed by my noble friends Lord Ashton and Lord Bates in earlier stages of the Bill. But there is a danger that the noble Lord’s amendment would serve to encourage unfounded claims from those who do not need protection at all but are simply seeking employment opportunities, knowing that if they play their cards right they can achieve that objective within nine months. These are opportunities for which they would not otherwise be eligible. That cannot be right or acceptable. The shorter the period allowed for in this context, the more we encourage spurious asylum claims of this kind.

Currently, the Immigration Rules allow non-EEA nationals to work here if there is no suitable resident worker available. This gives priority to those filling roles on the shortage occupation list and is subject to numerical limits. If non-EEA nationals could bypass these restrictions by lodging an unfounded asylum claim, this approach would be completely undermined. It could encourage illegal migrants to come here and make an unfounded asylum claim, which would prejudice the position of British people and recognised refugees in our labour market. I say that because if we were to experience an increase in unfounded claims, the knock-on effect would be to delay claims from genuine refugees and undermine our progress towards a fair and efficient asylum system.

There has been much debate about delays in decision-making in the Home Office, but this is no longer an issue. Delays have been brought under control and, in the great majority of cases, asylum seekers receive a decision within six months. Many of those who do not are the complex cases that I referred to earlier. The noble Lord’s amendment carries an increased risk that we will be obliged to give a free pass to people with a criminal record—or, shall I say, with a criminal past. The majority of refugees are granted asylum within six months and once that happens, they have unrestricted access to the labour market.

The noble Lord, Lord Alton, suggested that his amendment was a route out of poverty but this suggests that asylum seekers are penniless. While awaiting a decision, they receive free accommodation and a cash allowance to cover essential living needs if they would otherwise be destitute. While their claim is outstanding they can undertake volunteering activities that can benefit a community, giving them a sense of purpose, and we are exploring ways to support this.

The amendment proposed is unnecessary and I really do not think that the noble Lord has made his case. Asylum seekers do not need to work and what he proposes carries the risk of serious abuse. I firmly believe that the current policy strikes the right balance. As I said earlier, it is fair and reasonable towards genuine asylum seekers; it is consistent with our international obligations; and it takes into account the rights and needs of our society as a whole. On that basis, I ask noble Lords to resist Amendment 59B in lieu.

[Lord Alton of Liverpool]

My Lords, I am grateful to the noble Earl for his reply. However, I would beg the House to consider whether these are convincing arguments. If there were gangs of marauding criminals—or war criminals—seeking jobs in the 24 countries that use either a six-month or a nine-month limit, I think we would have heard about it by now. It is a slightly bizarre argument. If the Government were really concerned that this might be misused, then surely the answer is to engage with the amendment and for the Government to come forward and include exemptions, so that if someone is being prosecuted, they would not qualify for this entitlement. There are ways of dealing with this, if the noble Earl really is serious about it, rather than saying out of hand, “We are not prepared to do what 24 other countries are doing”.

The noble Earl also said that this will deprive British people of jobs. We are talking about a tiny number of people in reality: the 3,600 people I mentioned in my earlier remarks. If the Government are right and are able to deal with these matters in a six-month period, presumably those numbers will continue to reduce.

What is the view of the British public? A survey conducted by the IPPR found that 51% of people in the UK thought that asylum seekers should be allowed to work, with 29% saying they should not. It is not right for the Government to imply that there is hostility in the country. If you were to ask people whether it is right to leave people to survive on £5 a day, I have a pretty shrewd idea of how public opinion would react to that question. If you were to ask them whether it is better for people to scrape along in destitution on £5 a day or to be given support through their own efforts and labours, again I know where public opinion would stand. Of course people believe it is better for people to provide for themselves rather than the state making that provision for them. This is not about free passes; this is about human dignity. It really disturbs me that we are adopting a morality that seems closer to the Victorian approach to the workhouse than to one based on the humane and civilised needs of the 21st century.

I am disappointed that the noble Lord, Lord Rosser, feels unable today to come into the Lobby with us. After all, he was a signatory to this very same amendment, when it provided for six months, when it was before your Lordships’ House on a previous occasion. However, I am extremely grateful to the noble Baronesses, Lady Lister and Lady Hamwee, and others of your Lordships who encouraged me to retable an amendment today. Having done that, I would like to see the opinion of the House. I hope the House will agree that this amendment should find favour here and go back to another place so that they can have a discussion about its merits, or otherwise, which it was unable to do yesterday. That is a reason, surely, for returning it back down the corridor.

--- Later in debate ---

I hope that the House will be persuaded by what I have said. We have moved a very long way since the matter was first debated in the House.

[Lord Alton of Liverpool]

The noble Earl may remember, or may have been briefed on it, that a meeting was convened by his noble friend Lord Bates when he held ministerial responsibility. We were told during that meeting that to deal with the problem of an employer who might repeat the offence of bringing other people into the country in order to engage in the same level of abuse against them that they did with an earlier employee, some kind of register would be drawn up and there would be a licensing system to prevent that taking place in the future. Can the noble Earl say whether any further thought has been given to that? He is quite right that none of us would want to see the repetition of these offences, but surely a licensing system and register would be the way to prevent that occurring.

[Earl Howe]

My Lords, as I said in my earlier remarks, we have accepted in principle the need to bring employers into the net, if I can put it that way. They have to register when they arrive so that we know who they are and who they are employing. I think we have addressed that point. It is necessary, I agree with the noble Lord, to know who is bringing overseas domestic workers into the country. We will be working through the detail of the registration requirement over the coming weeks and will announce more details in due course. The key purpose will be to allow us to monitor those who bring overseas domestic workers into the UK in the first place.

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I will speak only to Motion C, which I support, along with Amendment 85A. On Report, when I abstained on the vote, I suggested that there was a problem with the existing scheme in that detainees have to take the initiative and prove their case for release. I suggested that it would be more proper that,

“the burden should shift to the Home Secretary to prove good reason to extend a period”.—[Official Report, 15/3/16; col. 1792.]

However, I could not support 28 days and suggested an initial period of nine months.

I am satisfied, for my part, that that problem is now properly addressed. As the Minister has explained, the proposed automatic referral at six months operates as a safeguard, because the detainee can of course himself apply for bail at any point. I recognise the point made by the noble Lord, Lord Ramsbotham, that some detainees, because of their mental condition, may well not be in a position to do so, but this safeguard has now been introduced. I further recognise that the tribunals to which application for bail is made apply a presumption in favour of liberty, and that of course the well-known common law principles initially established in the Hardial Singh case continue to apply.

Apropos of that, I will just refer to the decision of the Supreme Court as recently as last week, 20 April, in a case called Nouazli v Secretary of State. The court, giving a single judgment, says at paragraph 67:

“The courts have recognised that there are sound policy reasons for a flexible and fact-sensitive approach. I find nothing in the judgments of the ECtHR which undermines the Hardial Singh approach to the duration of detention”.

It then points that out an earlier Supreme Court decision, in another case referred to the court, observed that the Hardial Singh principles are,

“more favourable to detainees than Strasbourg requires”.

With those various safeguards in place, I support this Motion. I could not support the original amendment, Amendment 84, and I cannot, with respect, support the 56 days now proposed by the noble Baroness, Lady Hamwee. As I said, I initially suggested nine months. The Government have done better at six months, and even that will now be the subject of further review in case it can in future be shortened.

[Lord Alton of Liverpool]

My Lords, although I support my noble friend’s amendment, others have spoken to it and I do not wish to be repetitious. I supported the noble Baroness, Lady Lister, on Report: I was a signatory to her amendment then and I am very happy to support her again today, as I hope the House will.

I simply ask whether the noble and learned Lord, when he replies to the points the noble Baroness has set out, will say what his response is to the call by the Royal College of Midwives today for a review of the whole process, as the noble Baroness said. I remind the House of what Stephen Shaw found in his Review into the Welfare in Detention of Vulnerable Persons. He said that,

“detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn children”.

The Royal College of Midwives states:

“Even if a pregnancy is completely healthy and uncomplicated; the dignity and care that should be afforded all pregnant women is compromised by detention”.

I agree with what the noble Baroness, Lady Hamwee, said. My noble friend Lord Hylton and I visited Yarl’s Wood during the Bill’s passage. We raised the question of pregnant women and, although I personally believe that conditions at Yarl’s Wood have been very significantly improved, it cannot be right to keep pregnant women in any detention centre, and there must be alternatives to that. That is why it is so important to support the noble Baroness’s amendment today.

[Lord Pannick (CB)]

My Lords, I find this much more difficult than some noble Lords. Motion C1 in the name of the noble Lord, Lord Ramsbotham, would limit immigration detention to 28 days, save in exceptional circumstances. I cannot support that.

Immigration detention is confined to cases where there is a realistic possibility of removing the person concerned from this country within a reasonable time. The fact is that that often takes more than 28 days, because of the need to liaise with the country to which the person is being removed and because, very often, the individual concerned does not co-operate with the process.

Furthermore, the law requires that immigration tribunals refuse bail only in circumstances where there is a risk of the person absconding or some other substantive reason for keeping them in detention, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said a few moments ago. It is true, as the noble Lord, Lord Ramsbotham, pointed out, that many of the persons detained have mental problems and many of them do not speak English, but it is also true that many expert bodies provide much-needed advice and assistance—and properly so—to those who are detained. I cannot support a 28-day absolute limit, saving in exceptional circumstances, because the circumstances that I have outlined are far from exceptional; they are quite standard.

Motion C2 in the name of the noble Baroness, Lady Hamwee, would require a bail hearing every 56 days. This is more difficult. I think the Government’s position, approved in the other place yesterday, of a bail hearing every six months, is adequate. The reason is that it is a default provision. It is additional to the right of the individual, advised by all those expert groups, to apply for bail at any time, and to argue at any time that there is now no reasonable possibility of being removed, or that there is no good reason—for example, a fear of absconding—for detention.

I also mention Motions D1 and D2. Motion D1, in the name of the noble Baroness, Lady Lister, would prevent the detention of a pregnant woman, save in the most exceptional circumstances. The problem with that is that it would prevent the detention for removal of a woman who arrives at Heathrow Airport with no basis for entry and who can, if she is detained, be removed from this country, and rightly so, within a short period—for example if she is not making an asylum claim. That is not “the most exceptional circumstances”; it is a fairly standard case. Motion D1 would also, as I understand it, prevent in any circumstances the detention of a pregnant woman who is the subject of a deportation order but who refuses to go voluntarily, who can be removed within a very short period. I cannot support that.

Motion D2, in the name of the noble Baroness, Lady Hamwee, is again more difficult, but I am satisfied on balance that government Motion D is a very substantial change which will protect pregnant women, made in response to the amendment approved by this House.

We ought to bear in mind that what the Government have agreed under subsection (2) of the new provision is that a pregnant woman may not be detained under a relevant deportation power for more than 72 hours or for more than seven days where, and only where, such detention is authorised personally by a Minister of the Crown. The Minister in the other place, Mr James Brokenshire, has responded to the concerns expressed by this House and I am persuaded by the noble and learned Lord, Lord Keen, that this amendment, which was approved in the other place, should be approved.

Immigration Bill

Lord Alton of Liverpool Excerpts

Tuesday 12th April 2016 Lords Chamber

[Baroness Lister of Burtersett]

My Lords, Amendment 6 would put into law the recommendation of the Shaw review into the welfare in detention of vulnerable persons, commissioned by the Home Office, that the current presumptive exclusion from detention for pregnant women should be replaced with an absolute exclusion. On Report, the noble and learned Lord, Lord Keen of Elie, twice stated that the Government would reflect on the matter by Third Reading. However, he also made it clear that the Government did not consider it appropriate for there to be an absolute rule and gave the example of an irregular migrant—I deliberately do not repeat the term “illegal”, in line with the recent recommendation of the Council of Europe’s Commissioner for Human Rights—who arrives at an airport and can be returned almost immediately. Six days later, the noble and learned Lord sent a detailed letter to me and the noble Baroness, Lady Hamwee, in which, among other things, he addressed the specific questions that I had raised about the new guidance on the detention of pregnant women. I am grateful to him for that, in particular for his agreement to share a draft of the new operational guidance with detention-related organisations such as Women for Refugee Women, to which I pay tribute for its tireless work on behalf of women in detention.

However, on the underlying question of whether pregnant women should be detained at all, the noble and learned Lord in effect repeated what he said on Report, and I did not see any evidence of the promised further reflection. I had assumed that there would be a further statement giving the Government’s formal response to Shaw’s recommendation, but when none had appeared by yesterday, I realised that it was not to be and therefore thought it important that your Lordships should have the opportunity to consider this question, which inevitably got rather lost in the debates about the wider question of time limits. I apologise that, as a result, the amendment was tabled at the very last minute.

Stephen Shaw was clearly aware of the issue of pregnant women who might not otherwise be returned quickly to their country when appropriate to do so. Nevertheless, he concluded:

“I believe that the Home Office should acknowledge the fact that, in the vast majority of cases, the detention of pregnant women does not result in their removal. In practice, pregnant women are very rarely removed from the country, except voluntarily”.

He therefore recommended unequivocally that the presumptive exclusion from detention should be replaced with an absolute exclusion. In doing so, he cited evidence from the Royal College of Midwives, among others, which he said demonstrated the,

“incontrovertibly deleterious effect on the health of pregnant women and their unborn children”.

In a witness statement to the High Court, the director for midwifery at the RCM spelled out the medical reasons why detention is completely inappropriate, particularly for a group of pregnant women with significant or complex health and psychosocial problems in need of higher levels of care than the general population. I here call on the Minister to arrange for a discussion of the issues raised by the detention of pregnant women with the RCM, Medical Justice—which has produced a damning research report on the issue, endorsed by the Royal College of Obstetricians and Gynaecologists—Women for Refugee Women and organisations working with those who have suffered torture.

Stephen Shaw stands by his recommendation; I heard him speak recently and eloquently in support of it. He spoke of detention’s “undoubted damage to mothers and unborn babies” at a meeting in Parliament hosted by Caroline Spelman MP, who together with me, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Ramsbotham—who I do not believe is in his place—were members of the parliamentary inquiry into detention which recommended that pregnant women should never be detained for immigration purposes. That inquiry’s recommendations were endorsed by a Motion in the Commons last September. In his address, Mr Shaw drew attention to the Prime Minister’s prisons speech earlier this year, in which he expressed particular concern about the position of mothers and babies in prison.

The argument that the absolute exclusion recommended by Shaw would tie the Government’s hands inappropriately might appear reasonable. The problem is that, in effect, it means no real change from the status quo so roundly criticised by Shaw and others, including HM Inspectorate of Prisons, which told Shaw that there is little to suggest that pregnant women are being detained only in exceptional circumstances, as is supposed to be.

Current Home Office policy already states that the only exception to the general rule that pregnant women should not be detained is when removal is imminent and medical advice does not suggest that the woman concerned will go into labour before her removal date. In spite of this clear policy presumption against detention, in 2014, 99 pregnant women were detained and, in 2015, 69. Of the 99 pregnant women detained in Yarl’s Wood during 2014, 30—that is nearly one-third—were held for between one and three months; four for three to six months; and only nine were deported from the UK. I understand that there is a pregnant woman who has been there for just over two months at present.

I ask the noble and learned Lord to explain what additional safeguards the new approach brings. How can he reassure noble Lords that the new policy will mean that pregnant women are detained in only the most exceptional circumstances when the current policy is already supposed to ensure that? I know that the Home Office believes that the new gatekeeping team to be introduced as part of the adults-at-risk approach will introduce a degree of objectivity into detention decision-making and so protect against inappropriate use of detention. However, given that this team will still sit within the Home Office—albeit in a different management chain from those making the decisions—the oversight it provides will clearly fall short of the independent element for detention decision-making that the Shaw review recommended the Home Office should consider.

Returning to the example of the pregnant woman who arrived at the airport with no right of entry, it is the only example we have been given of where an absolute exclusion would cause a problem. So it should be, because it is the only exception that exists at present. I have not seen any evidence as to how often this occurs at present. The fact that nine out of 10 pregnant women held in detention in 2014 were subsequently released back into the community rather than deported suggests that it is rare. ILPA makes the point that if a pregnant woman claims asylum she cannot be returned until her claim is determined in any case.

As Women for Refugee Women argue, refusing to accept Shaw’s clear recommendation of an absolute exclusion from detention on the basis of what would appear to be a small number of cases each year where swift removal might be possible, and when there is clear evidence that allowing decision-makers discretion results in significant numbers of pregnant women being detained in circumstances that are far from exceptional—just one pregnant women being detained when she should not be is one too many—is not sensible, effective or humane policy-making. I hope that even at this late stage the noble and learned Lord will accept Stephen Shaw’s recommendation, which has support across the political spectrum and from a wide range of civil society groups, none of which have been convinced by the Government’s argument against doing so. I beg to move.

[Lord Alton of Liverpool (CB)]

My Lords, I should like to support the amendment moved so well by the noble Baroness, Lady Lister. I raised this issue in Committee, and then my noble friend Lord Hylton and I took the trouble to go to Yarl’s Wood where we asked questions about the number of pregnant women who had been detained there in the past or might currently be detained. I share the view of the noble Lord, Lord Bates, who did such wonderful work on this Bill in its earlier stages. He commented on a Channel 4 investigation into Yarl’s Wood, which was shown in March 2015, where staff members called the women being held there “animals” and “beasties”. Having watched the programme, the noble Lord said to the House:

“I watched that documentary on Channel 4, and quite frankly I was sickened”.—[Official Report, 28/1/15; col. 103.]

Having been to Yarl’s Wood, I was able to say to the House that many of the staff we met had learned the lessons of that experience, and certainly my noble friend and I were impressed by many of the standards that we saw, but nevertheless we could not be convinced that it could ever be right, as the noble Baroness has just said, to have even one pregnant woman detained in those circumstances.

The Royal College of Midwives has said that:

“The detention of pregnant asylum seekers increases the likelihood of stress, which can risk the health of the unborn baby”.

In the review referred to by the noble Baroness, the former Prisons and Probation Ombudsman for England, Stephen Shaw, says this:

“that detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn children … I take … to be a statement of the obvious”.

Alongside that, of course, there are long-standing concerns about the conditions in Yarl’s Wood. The Chief Inspector of Prisons has called it a “place of national concern”. Although I have tried, I hope fairly, to say that conditions have undoubtedly improved, nevertheless it is not a place where pregnant women should be.

The briefing material referred to by the noble Baroness from the organisation Women for Refugee Women poses the question that the Government frequently ask in these circumstances:

“If the government said they were going to stop detaining pregnant women, wouldn’t women lie and say they were pregnant—or get pregnant deliberately—just to avoid detention? And wouldn’t women abscond if they weren’t detained?”.

I agree with the response:

“Establishing if a woman is pregnant or not is very straightforward: she simply needs to take a pregnancy test! The idea that women would get pregnant as a way of avoiding detention is unfounded and based on sexist stereotypes about women and the way they behave”.

To illustrate the strength of that argument, which I agree with, it is perhaps worth mentioning to noble Lords the story of one woman, Priya:

“Priya was trafficked to the UK and forced into prostitution. She has been detained in Yarl’s Wood twice; the second time she was locked up, she was 20 weeks pregnant, and was held in Yarl’s Wood for seven weeks before being released back into the community”.

Picking up her story, she says this:

“I was released after three months in detention, and fell pregnant by my partner, but then I was detained again. Although I had a written report from an expert, the Home Office did not believe that I was trafficked, so my claim was refused and I found myself back in detention. This time around I was in Yarl’s Wood for about seven weeks, and I was 20 weeks pregnant when I arrived.

I only had one hospital appointment while I was there, for my 20 week scan, and even then I was escorted by officers who took me 40 minutes late for my appointment. I felt frustrated that I wasn’t able to speak to the midwife after my scan because there was no time. The officers just took me straight back to Yarl’s Wood instead”.

I will not read the entire testimony to the House, but let me pull out two more sentences:

“The first time I was detained in Yarl’s Wood, I was on medication for sleeping and depression, and I took an overdose because I felt so hopeless … I couldn’t eat the food in the canteen; that made me sick too. A lot of the time I could only really manage milk. It was too far for my partner to visit and, as an asylum seeker as well, he couldn’t afford the travel, but we spoke on the phone every day. I’ve been released now but I still feel depressed”.

Levels of depression in Yarl’s Wood and incidents of self-harm have been very high indeed. The prisons inspectorate report in 2015 found that more than half of women who were detained there felt depressed or suicidal when they first arrived, and that there had been 72 incidents of self-harm in the previous six months —a huge rise from the previous inspection. Surely these are circumstances in which we should never put someone who is pregnant.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I understand fully that the intention of the amendment tabled by the noble Baroness, Lady Lister, is to reflect the recommendation from Stephen Shaw that pregnant women be absolutely excluded from detention. On this point, I reiterate what I made clear on Report and set out in my letter to the noble Baroness and to the noble Baroness, Lady Hamwee. While the Government agree that it is not right to detain pregnant women unless there are exceptional circumstances, it does not consider that an absolute exclusion would be workable.

As has been explained in this House and in another place, it is important that the Government are able to detain, for a short period, those with no right to be in the United Kingdom who refuse to leave voluntarily. For example, if an immediate removal is planned, a short period of detention may be appropriate to facilitate a safe departure where there are absconding risks or other public protection risks to be considered. Furthermore, exempting from detention an individual who has arrived at the border with no right to enter the United Kingdom and who can be put on a return flight quickly would allow pregnant women access to the United Kingdom regardless of their immigration status.

The noble Baroness, Lady Lister, mentioned that 99 pregnant women were detained in Yarl’s Wood in 2014 and that this number had reduced to 69 in 2015. I am advised that there is, at present, one pregnant woman in Yarl’s Wood. She is a foreign national offender who recently completed an 18-month prison sentence and was detained there on 9 February. A deportation order was signed and removal directions were in place for 3 April. These were later brought forward to 26 March but then deferred because of an asylum claim being made. I am advised that there has now been an application for judicial review as well. Taking that case as an example, if removal ceases to be imminent there is every prospect of release subject to conditions. This is what frequently happens in these circumstances and goes some way to explain why only a small proportion of those actually in detention are subsequently removed from detention and deported. Many are released under condition and their asylum or immigration status is determined subsequently and the matter disposed of in that way.

I stress that we are dealing with cases in which there are exceptional circumstances. The noble Baroness, Lady Neuberger, observed that uncertainty over immigration status could itself be a source of stress and anxiety for a pregnant woman. That may very well be the case: who could dispute it? But she went on to say that they can be detained for not very good reason. We cannot accept that. Our policy and guidelines are very clear: pregnant women are to be detained only in exceptional circumstances. There is a requirement for that detention in particular and exceptional circumstances.

The noble Baroness, Lady Lister, will be aware that, on Report, I stated that the Government intended to reflect on the detention of pregnant women and would have a considered position by Third Reading. I apologise to the House for the delay in completing that consideration. This is a complex issue and the Government continue to give it serious thought in the context of the work that is under way in developing policy on adults at risk in detention and the further implementation of Stephen Shaw’s report and its recommendations. That is taking time to finalise because the Government do not want to rush what is and is recognised to be a highly important issue. But I assure the noble Baroness and the House that the Government will be making a formal announcement on this matter very shortly. Indeed, the Government expect to make such an announcement in a matter of days.

The announcement will not involve an absolute prohibition on the detention of pregnant women. It will, however, set out a very clear and limited time for detention, only in exceptional circumstances, as it may be applied to pregnant women.

[Lord Alton of Liverpool]

I wonder if the Minister can explain to us why, if it is possible for the Government to make a statement in a few days, it is not possible to make that statement today.

[Lord Keen of Elie]

If I was in a position to make the statement today, I am sure the noble Lord appreciates that I would do so. He may be familiar with the wheels of government and with the requirement for these matters to be approved at various levels before a final statement is made. If I was in a position to make that statement, I reassure the noble Lord that I would not hesitate to make it.

--- Later in debate ---

[Baroness Hamwee]

My Lords, from these Benches I add our thanks, particularly to the noble Lord, Lord Bates, who has started on a rather long walk, as my noble friend Lord Wallace of Saltaire said. It is one of a series of admirable walks but the noble Lord’s colleagues have been walking well alongside him, and after him, during the course of the Bill. It feels a little odd to agree that the Bill do now pass, because we are by no means clear what it will provide by the time that it has endured—a word that the noble Lord the Chief Whip might use—ping-pong. We are by no means finished with these issues or with the Bill itself.

[Lord Alton of Liverpool]

My Lords, from the Cross Benches, perhaps I can briefly add a remark to those of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Rosser, particularly in paying tribute to the noble Lord, Lord Bates, whose leave of absence was agreed by the House only yesterday. I was privileged to get to know the noble Lord, Lord Bates, when we served in another place and we remained friends after he left the House of Commons. I was delighted when he was appointed as a Member of your Lordships’ House; I was even more delighted when the Government had the good sense to appoint him as a Minister of the Crown. He has discharged his responsibilities in the House over the passage of time, particularly on the Modern Slavery Act and now on the Immigration Bill, with great distinction. We have huge admiration for the work that he is undertaking, which is to raise the peace pledge and the work of the Red Cross and Save the Children. It touches on many of the issues which we have debated in your Lordships’ House during the passage of the Bill so, before the Bill passes, I am sure that we all add our voices to those which have already been raised in thanking the noble Lord, Lord Bates, for all that he did.

[Earl Howe]

My Lords, I am sure that my noble friend Lord Bates, were he present today, would be touched and gratified by the comments that have been made about him. I am grateful to all noble Lords who have spoken but, more particularly, I am grateful to the Members on both Opposition Benches and the Cross Benches for their constructive role throughout the passage of this Bill which, as the noble Baroness, Lady Hamwee, has said, has not quite left our Chamber yet. We will be returning to it. Nevertheless, the whole tone of the debate has been extremely positive even when it has been questioning and, from the point of view of the Government’s Benches, I express my gratitude for that.

Syria

Lord Alton of Liverpool Excerpts

Tuesday 15th March 2016 Lords Chamber

[Earl Howe]

It may be possible for me to give a more substantive answer to my noble friend as the days proceed. But he is absolutely right in what he says about our experience of the Russians, which is why I made it clear earlier that we need to judge Russia by its actions and not by its words. President Putin has committed to a political resolution to the conflict through UN Security Council Resolution 2254. Russia’s co-chairmanship of the International Syria Support Group is further evidence of that. President Putin told European leaders on 4 March that he agreed that now was the time to focus on the political process. He backed the timetable agreed in Vienna of a political agreement within six months and a schedule for the preparation of a new constitution and elections within 18 months. We are saying to Russia that it must use its influence to end the conflict once and for all, rather than prolong it, and we hope it chooses to do so.

[Lord Alton of Liverpool (CB)]

My Lords, reverting to the question that was asked by the noble Baroness from the Opposition Front Bench a few moments ago, has the Minister had a chance to consider the unanimous resolution passed yesterday by the House of Representatives of the American Congress, declaring events to be a genocide, following in the footsteps of both the European Parliament and the Parliamentary Assembly of the Council of Europe? Does he not agree that the time now is right for this country to consider passing such a resolution, invoking whatever judicial procedures are necessary to bring that about, and to bring the matter up at the Security Council, pressing for a referral to the International Criminal Court, in the light of the monstrous acts of barbarism by ISIS and others that have taken place?

[Earl Howe]

My Lords, we have noted with deep concern and condemnation the actions to which the noble Lord refers. We have also noted the resolution that he mentioned. As he knows, however, it has been the consistent position of the Government, and that of Governments before us, that any resolution declaring genocide is a matter for the judicial system rather than the Government. But that does not alter the facts on the ground, which are truly dire. We are very concerned that these matters should be given the due weight and prominence that they undoubtedly deserve in the negotiations.