Illegal Migration Bill
Lord Murray of Blidworth ExcerptsMonday 5th June 2023
(11 months, 2 weeks ago)
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Lord Verdirame (Non-Afl)
My Lords, I hesitated to come in before and I apologise for not participating at Second Reading, but I followed the debate closely. I must declare an interest: I have been instructed before by the Government as a member of the Bar on matters relating to the subject matter of the Bill. But I can speak freely on Amendment 13 because it is not anything on which I advise. I wish to speak in support of it.
The negotiation of removal or readmission agreements is, of course, a matter for the Government and not for Parliament. But there are many examples in treaty negotiations of Governments invoking pressure from their parliaments—or even from their courts—as a reason for not being able to make a concession or for insisting on concessions from the other side. It seems to me that it might end up strengthening the hand of the Government in these negotiations if they are able to say that Parliament is insisting on them.
The most difficult negotiation is, as we have heard, with the European Union. The European Union is not opposed to readmission agreements. On the contrary, it concluded a number of them with many countries, from Turkey to Belarus. Incidentally, the readmission agreements with Belarus and Russia have been suspended, quite rightly, because of the situation that has arisen. A number of us, I think, would have regarded those agreements as problematic from a human rights point of view even before that.
The reason why a readmission agreement with the UK is difficult is that the UK is a country from which European Union member states would have to take people back, rather than send them back. The Government published a draft readmission agreement for negotiation with the EU in the summer of 2020. That text is still available on the government website. If the EU had accepted that treaty, it would have allowed the UK to send people back to EU member states—not only permanent residents and nationals, but also third-country nationals who have transited through an EU member state. The provisions in that draft treaty proposed by the UK were identical to a number of provisions found in readmission agreements concluded by the European Union, including the one with Turkey. The Minister will correct me if I am wrong about this, but I think that negotiations with the EU on the Government’s draft proposal never took off.
It is worth noting that both the UK and the EU—and that includes the EU in its own capacity and EU member states—are subject to quite wide-ranging treaty obligations on both migrant smuggling and human trafficking. These treaties impose various obligations of international co-operation, including, in the case of the migrant smuggling protocol, the obligation to
“cooperate to the fullest extent possible to prevent and suppress the smuggling of migrants by sea”.
Generally speaking, these are obligations of conduct rather than by result. They do not oblige the EU to accept the terms of the treaty proposed by the UK. They do, however, require the EU, EU member states and all parties to those treaties to engage in good faith negotiations with the UK on readmission, particularly where very similar treaties have been concluded in other contexts. It would be a very unattractive position for any party to these treaties to take the view that they are open to readmission agreements only when they are in their interest and not when they are not.
It seems to me that Amendment 13 would bring some of these questions to the surface by requiring the Government to update Parliament on the status of these negotiations and on the reasons why these negotiations might not be progressing. That is outlined in subsection (3) of the new clause proposed in Amendment 13. It would not be a case of government and Parliament speaking with separate voices; on the contrary, it would be a case of Parliament adding its voice and adding pressure for the purposes of achieving an objective that both Parliament and government consider important.
My final point concerns the language of “formal legally binding agreements” in subsection (1). It is broadly right that this should be the optimum arrangement—the formal legally binding agreement—but it is also the case in this sort of practice that states will often conclude agreements that are not binding. The European Union has two such agreements with Guinea and the Gambia. For various reasons, those agreements, in some cases, are more appropriate. My understanding—and the Minister will, again, correct me if I am wrong—is that the arrangement with Albania that was announced a few weeks ago is actually part of a non-binding arrangement that was built on an existing treaty. The treaty itself is the one from 2021, but the further agreement that was announced by the Prime Ministers at their recent meeting is an example of such a non-binding agreement that can, in certain circumstances, be a better way of achieving that same objective. I would agree, however, with the notion that the formal and legally binding agreement is the gold standard in this kind of situation.
The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)
My Lords, this Bill sets out a duty on the Secretary of State to make arrangements for the removal of a person who has arrived in or entered the UK illegally and satisfies the four conditions set out in Clause 2. In the majority of cases, formal returns agreements are not required in order to carry out removals. Most countries co-operate with returns, and these relationships are managed through official-led engagement with immigration counterparts in receiving countries and through consular services based in the UK. Returns agreements can be a useful tool to solidify or improve returns co-operation and are sometimes requested by the receiving country. We carefully consider whether it is beneficial to enter into negotiations to formalise a returns relationship, having regard to the potential requests that the other side would seek to incorporate into an agreement, such as a liberalisation of the UK visa requirements in respect of their nationals.
As of May 2023, the Home Office has 16 returns agreements in place. Recent additions to the list include Albania, India, Nigeria and Pakistan. Just last week, the Prime Minister announced the start of negotiations on a new returns agreement with Moldova. A number of these agreements are sensitive, and receiving countries might withdraw co-operation if they are publicised, so it would be detrimental to formalise and publish all such agreements. There are also some countries where the existing security and country situation might prevent returns taking place, such as Sudan and Afghanistan. We continue to monitor the situation closely in those countries with a view to resuming enforced returns as soon as is practicable and safe.
I should add that, while returns agreements have a valuable role to play, they are not silver bullets. The noble Lord, Lord Coaker, has, in terms, accused this Government of ripping up the Dublin convention, but may I just remind the noble Lord that the UK was a net recipient of migrants under the Dublin scheme? As my honourable friend Tim Loughton said in the other place:
“In the last year that we were covered by the Dublin convention, before the pandemic struck, we applied to the EU for 8,500 returns under that returns agreement and only 105 were granted—that is 1.2%—so what he says is complete nonsense. It did not work when we were in the EU, and he is now expecting to magic up some agreement that the EU will not give us anyway”.—[Official Report, Commons, 26/4/23, col. 792.]
Mr Loughton was, at that time, intervening on the speech of Stephen Kinnock in the other place.
In addition to the returns agreements, we also have our world-leading migration and economic development partnership with Rwanda. I remind the House that there is no limit on the numbers that can be relocated to Rwanda under the partnership agreement.
The noble Lord, Lord Coaker, cited various figures, including in relation to the current asylum backlog. I remind noble Lords that, under Clause 4, any asylum claims made by persons who meet the conditions in Clause 2 are to be declared inadmissible. It is, of course, important to deal with the current backlog. The Prime Minister announced today that the initial decision legacy backlog is down by over 17,000, but there is no correlation between these legacy cases and the cohort to be removed under the Bill.
The noble Lord, Lord Kerr, asked about the impact assessment for the Bill. We have already published the equality impact assessment, and we will publish an economic impact assessment in due course. Noble Lords will have to wait patiently for the economic impact assessment. In the interim, I do not propose to comment on impact assessments issued by NGOs or leaks in the media.
Lord Scriven (LD)
I have a very important question. The noble Lord and government Ministers keep saying from the Dispatch Box, here and in the other place, that certain things will happen if the Bill goes through. Has the Home Office actually completed an impact assessment which clarifies exactly what the Minister is saying?
Lord Murray of Blidworth (Con)
Certain things will happen when the Bill goes through; the system described within it will take effect. I assure the noble Lord that this is something that the Home Office expects to happen—that is, that returns will be effected in accordance with the duty imposed on the Secretary of State.
Lord Carlile of Berriew (CB)
If the impact assessment is to be provided in a timely way—or if not—will the Minister ensure that it contains an estimate or assessment of the number of people who would have been granted asylum but will not be because they are excluded as a result of the blanket effects of the Bill?
Lord Murray of Blidworth (Con)
It is not for me to dictate what is in the impact assessment. The department will provide the impact assessment in due course—
Lord Murray of Blidworth (Con)
I will come back to the noble Lords in due course, but I need to make progress.
The broken asylum system costs the UK £3 billion a year, and that is rising. There seems to be an impression that, without the Bill, those costs will not continue to rise at an alarming rate year on year. Doing nothing is not an option.
In conclusion, I agree with the noble Lord that returns agreements have a place, and we will seek to negotiate these where appropriate. By their nature, any such negotiations involve two parties. The UK cannot compel other countries to enter into such agreements; they are a two-way process. Moreover, it will not enhance such negotiations to require their status to be set out in a three-monthly report to be laid before Parliament.
The Lord Privy Seal (Lord True) (Con)
My Lords, if I may, I remind the House that it is not required for a Minister to give way. However, your Lordships may like to recall that we are in Committee, and the normal procedure of Committee is that someone can intervene again. However, I think it is always helpful for the House to allow the Minister to complete his remarks—and then, doubtless, the noble Lord may wish to comment on them.
Lord Murray of Blidworth (Con)
As I say, this will not advance our negotiating position—quite the contrary. This amendment could well make such negotiations harder. It does not help the UK’s negotiating position to be setting out its negotiating strategy in public. I therefore invite the noble Lord to withdraw his amendment.
Lord Murray of Blidworth (Con)
The noble Lord and I appear to be talking somewhat at cross purposes. My answer was that it was not for me as the Minister to inform the contents and the conclusions of the impact assessment; it is of course for the Minister to ask broadly for the topics that the impact assessment should cover.
Baroness Jones of Moulsecoomb (GP)
Does the Minister understand that, if he answered the questions that your Lordships are asking, he would not experience this number of interventions? It is a rudeness not to answer our questions.
Lord Murray of Blidworth (Con)
The noble Baroness will have heard the comments from the Lord Privy Seal.
Baroness Lister of Burtersett (Lab)
To take the noble Lord back to the question that was asked by the noble Lord, Lord Scriven, has the economic impact assessment been completed or not? If it has been, why do we not have it? If it has not been, surely it should have been informing the Bill itself.
Lord Murray of Blidworth (Con)
I can do no better than say that the impact assessment will be published in due course.
Baroness Butler-Sloss (CB)
How do the Government justify not having an impact statement until presumably the whole of this House has completed its dealing with the Bill? It seems to me outrageous. How can the Government justify that?
Lord Murray of Blidworth (Con)
As I say, I am afraid the impact assessment will be published in due course.
Lord Cormack (Con)
My noble friend must accept that the Bill can be expedited and the House can be satisfied if a proper impact assessment is produced in time for Report. The whole purpose of Committee is to probe, as we are doing this afternoon and so on. However, when it comes to Report, when the House has to make significant decisions on the most sensitive piece of legislation that has been before Parliament for a very long time, it is crucial that we have all the facts at our disposal.
Lord Scriven (LD)
Regardless of when the impact assessment will be published, the Minister keeps restating issues as fact. I therefore ask: have those facts been determined by a completed impact assessment that he and his colleagues have seen and signed off?
Lord Murray of Blidworth (Con)
I am afraid I cannot do more than say that the impact assessment will be published in due course.
Lord Kerr of Kinlochard (CB)
The Minister really should say whether an impact assessment was produced. I apologise for reverting; I was the one who raised the question of the impact statement. I am not terribly happy with the message that the Minister is conveying. The noble Baroness, Lady Lister, put her finger on it. Presumably the Government did their own assessment of the impact of the policy that is reflected in the Bill; therefore, an impact assessment of some kind existed. If it did not exist, I do not know how the Government could have decided to adopt this policy. If it does exist—I am sure it does, in some form or another—the noble Lord, Lord Cormack, and the noble and learned Baroness, Lady Butler-Sloss, are surely right. We are being asked to take a decision without knowing its effect. We do not know—other than breaking humanitarian law and international commitments—what practical effect the Bill will have. Therefore, before we finish Committee, the Minister should change his line and let us have it.
Lord Murray of Blidworth (Con)
I am afraid that I must disagree with the noble Lord. The point about the Bill is that we know that deterrence has effect, and we have seen that, as the Prime Minister announced this morning, in relation to the effect of our returns agreement with Albania.
Baroness Chakrabarti (Lab)
I am grateful to the Minister for his patience. Could I try this another way in relation to the debate on the impact assessment? If I am wrong about this, I want to be set right. This is not a rhetorical question; this is a genuine question about the process and purpose behind these impact assessments. I had been thinking that the purpose of these various assessments by the department was that they become part of the case for the legislation in Parliament. The department does the drafting and the policy and that is the Bill, that will be law; and to back it up, it has its case based on the evidence that it has marshalled.
If I am right about that, that gives rise to the concerns about why we are going further and further down the legislative process before the court of Parliament—if you like—without the evidence base. Of course, that is particularly important in the case of so-called illegal migration, because public expense is such a concern in the public debate about immigration: cost-benefit economic analysis is always a keen part of the debate in the Committee, in Parliament and in the public square.
Finally, on this same point about process and the impact assessment, the Minister said earlier that it was not for him to dictate what would be in the impact assessment, and I do understand that, because no Minister would want to dictate that. However, if I am right, and the purpose of these assessments is that they are part of the Government’s case for the legislation, surely it is for the Minister and his colleagues at ministerial level to sign off on the quality of this work and the soundness of the proposition in it. Perhaps the Minister could clarify that. It is not a judicial process; it is an executive process of marshalling the economic case for this legislation.
Lord Murray of Blidworth (Con)
There is no statutory requirement to have a public impact assessment in relation to items of public legislation. Indeed, as I understand it, many pieces of legislation do not have one at all; so it is not a statutory requirement, as perhaps the noble Baroness seemed to suggest. Clearly, there is work done in the department behind the development of policy, and an economic impact assessment is certainly not an essential part of that process; nor is it a fundamental part. It is a part and, as I say, it will be published in due course.
Lord Alton of Liverpool (CB)
My Lords, surely this is not just about statutory requirements. Will the noble Lord contrast this with the way in which the right honourable Theresa May presented to Parliament the modern slavery legislation? That was dealt with by pre-legislative scrutiny, by consensus being developed across the political parties in another place, and by getting bicameral as well as bipartisan agreement around a similarly controversial question, much of which informs this particular Bill. Will the noble Lord accept, therefore, that the expressions that have been voiced around the Chamber are as much about the integrity of Parliament and the way we do things as they are about the substance of the Bill?
Lord Murray of Blidworth (Con)
Well, I always listen intently to the noble Lord’s measured contributions. Of course, the key distinction between this Bill and the Modern Slavery Act 2015 is that this Bill is to address an emergency presently affecting our country and to stop people drowning in the channel. That is why this measure has to be taken through Parliament at pace—in order to put in place a deterrent effect that stops those journeys being made.
Lord Hannay of Chiswick (CB)
My Lords, the Minister has made reference to the reduction in the number of Albanians using the cross-channel route, which is the object of this Bill. I think many of us strongly welcome and support what the Government did to negotiate with Albania and return people who are economic migrants. But would he not recognise that all that is happening under powers in the Nationality and Borders Act? It is nothing to do with the legislation before us. It is not relevant, frankly, to the case of Albania. So, it would be best not to pray in aid the welcome reduction in the number of Albanians crossing the channel, which is being dealt with under existing legislation. Is that not true?
Lord Murray of Blidworth (Con)
Hesitate as I do to disagree with the noble Lord, Lord Hannay, the amendment tabled by the noble Lord, Lord Coaker, relates to returns agreements. We have negotiated with Albania an effective arrangement allowing for the return of Albanians. It is more to do with that, I suggest, than with the 2022 Bill, although of course it all plays its part. It is an example which demonstrates that deterrents work.
Lord Hunt of Kings Heath (Lab)
My Lords, the Committee is entitled to ask what the Minister means by “in due course”. Specifically, will the impact assessment be available before Report? My thinking is that the House should not allow the Bill to begin Report without the impact assessment being available.
Lord Murray of Blidworth (Con)
I hear what the noble Lord says. I will take back his comments, and those of others, and we can reflect on them.
Baroness Brinton (LD)
My Lords, on the point raised by the noble Lord, Lord Hunt, can the Minister write to him, and put a copy of the letter in the Library, on whether the impact assessment will be published before Report,?
Lord Murray of Blidworth (Con)
As I say, I will take the mood of the Committee back to the department.
Lord Horam (Con)
My Lords, as an economist I am aware of the fallibility of economic forecasts. The Governor of the Bank of England had to admit recently that the forecast for the inflationary effect was 30 years out of date. We should be wary of placing too much reliance on economic forecasts as part of any impact assessment.
Of course, as the noble Baroness, Lady Chakrabarti, has just said, there must be some understanding of what the likely effect will be, based on international evidence and so forth. The Government have not gone into this totally blind. Nevertheless, we are talking here about a novel situation. We just do not know what is likely to happen as a result of a deterrent effect. We do not know what effect the Nationalities and Borders Act has had, and we do not know what effect this will have. We should therefore be a little guarded about the value and importance of an impact assessment in this case.
Lord Murray of Blidworth (Con)
I am very grateful to my noble friend for that intervention; he makes a very good point, with which I agree. Economic assessments are guarded with caveats, like any other economic forecast.
Lord Griffiths of Burry Port (Lab)
My Lords, I will be very happy to agree or disagree with whatever impact assessment arises, when I see it. How can we possibly take the advice just offered and make an opinion about something that might or might not be accurate until we see what to base our judgment on? It is an extraordinary, circular argument, from someone who wants to give a fig leaf to the Minister.
Lord Murray of Blidworth (Con)
I hear what the noble Lord says, but in any Bill the economic impact assessment—where one is provided, which is not in every case—is only ever one piece of the documentation that is available in support of a Bill. The impact assessment will be published in due course; I am afraid I cannot give the noble Lord any more information. I hear what he says, and the contribution from the noble Lord, Lord Hunt of Kings Heath, and will take their comments back to the department.
Baroness Lister of Burtersett (Lab)
My Lords, on 24 May, the Minister said the same thing: that he would take our concerns back to the department. There have been nearly two weeks for the department to reflect and act on our concerns about the economic impact assessment and the child rights impact assessment—which some of us consider to be even more important.
Lord Murray of Blidworth (Con)
I am afraid that I have nothing to add other than that it will be published in due course.
Lord Paddick (LD)
I am sure that the Minister did not mean to ignore the questions that I put to him. Perhaps he has not had the chance to read today’s Times. Can he write to me on the veracity of the reports in today’s Times and, while doing so, respond to the article in the Telegraph saying that the Home Office has failed to identify sufficient detention spaces as required by the Treasury?
Lord Murray of Blidworth (Con)
As the noble Lord well knows, it is not government policy to comment on leaks. That is a fairly long-standing convention. I do not propose to do so now.
Lord Murray of Blidworth (Con)
My Lords, Clause 3 sets out the power to remove unaccompanied children. This power will be exercised only in very limited circumstances ahead of an individual reaching adulthood. As the noble Lord, Lord Coaker, outlined, these include: reunion with the child’s parent; where the person is to be removed to a safe country of origin; where the person has not made a protection or human rights claim; or in other circumstances specified in regulations. If an unaccompanied child arrives in the UK illegally from a safe country of origin, they may be returned to their country of origin before they are 18. Of course, any such decision would be taken on a case-by-case basis.
I reassure the Committee that officials and Ministers take these decisions very seriously, with due concern for the sensitivities that have rightly been outlined by the Committee. But we need also to have in mind the profile of those who come on small boats. For context, I remind the Committee that—
Lord Murray of Blidworth (Con)
Perhaps I can take the noble Lord’s question in just a moment. For context, I remind the Committee that the majority of unaccompanied children who claimed asylum in the UK in 2022 were aged 16 or 17. Where there is a dispute about age, half are found to be adults.
Lord Scriven (LD)
I hope the Minister will stop this characterisation of the effects of this Bill as being just on those who arrive by small boats. He just did it again then. Is it not the case that this affects everybody, regardless of how they get here? It is not just small boats.
Lord Murray of Blidworth (Con)
Clearly, this Bill affects every person who falls within the four categories described in Clause 2, and that is all people who enter by any illegal method. Of course, at the moment, as we know, the majority of such entry is effected by small boats.
For any unaccompanied child who is removed while under 18, we will ensure that adequate reception arrangements are in place where the child is to be removed to. It is not simply a case of putting them on a plane back whence they came.
Lord Purvis of Tweed (LD)
I would be grateful for the Minister to respond to my point. I read from the factsheet, as he has just done. Where in the Bill is that made that a requirement?
Lord Murray of Blidworth (Con)
As I have already made clear, the answer is that the department has stated in both Houses that this is our position. The adequacy of reception arrangements is not something you would expect to see in the Bill, and it is consistent with the present regime that is operated in relation to unaccompanied asylum-seeking children.
Lord Murray of Blidworth (Con)
Forgive me. I must make progress. Doubtless, the noble Lord will have an opportunity at the end of my remarks.
Taking these measures will send a clear message that children cannot be exploited and cross the channel in small boats for the purpose of starting a new life in the UK. The clause provides the circumstances in which it may be appropriate to remove an unaccompanied child. However, the Government consider it necessary to be alert to the people smugglers changing their tactics to circumvent the Bill. As such, it is appropriate to have a power to extend the circumstances in which it would be possible to remove an unaccompanied child via regulations. This is very much a reserve power. We have to be mindful of changes in the modus operandi of the people smugglers. I cannot give the noble Baroness, Lady Lister, examples now of how the power might be exercised but I can assure her that such regulations will be subject to the affirmative procedure and therefore will need to be debated and approved by each House.
Clause 3 also sets out the power to make provisions for other exceptions to the duty to remove via regulations. This provision is important for providing the flexibility to make additional exceptions to the duty should we not want the measures in the Bill to apply to certain categories of persons. I will give one possible example of this: a person who is subject to the duty to make arrangements for removal may also be the subject for extradition proceedings and it would be appropriate for an extradition request, if approved, to take precedence over the duty to remove in Clause 2.
Amendments 14, 15 and 17 in the names of the noble Baroness, Lady Meacher, and the noble and learned Baroness, Lady Butler-Sloss, seek either to exclude unaccompanied children altogether from the duty to remove or only permit the removal if it was in their best interests, even when they reach 18. Amendment 22 in the name of the noble Lord, Lord Dubs, covers similar ground. It seeks to provide for asylum and human rights claims from unaccompanied children to continue to be admissible within the UK.
All these amendments would undermine the intent of the Bill. As I have indicated, if we fill it with exceptions and carve-outs it will not achieve its aims and will serve to put more children at risk as the people smugglers would seek to fill the boats with even more young people, putting further lives at risk and splitting up families. I can confirm that since January 2018 around one-sixth of arrivals on small boats have been children aged 17 and under. We do not want an increase in this proportion or in the absolute numbers. Our asylum system is under increasing pressure from illegal migration, and the Government must take action to undercut the routes that smuggling gangs exploit by facilitating children’s dangerous and illegal entry into the United Kingdom, including via dangerous routes such as small boats.
Stopping the boats is in the best interests of small children who might otherwise make these dangerous and unnecessary journeys. In response to the noble Lord, Lord Kerr, and the noble Baroness, Lady Bennett, who raised the issue of a lack of safe and legal routes, I remind the Committee that the safest course for children and adults alike is to seek sanctuary in the first safe country they reach. These amendments would undermine the central premise of the Bill that if one comes to the UK via an illegal route, one will be removed and not permitted to remain in the UK and build a life here. The amendments will increase the incentive for adults to claim to be a child and encourage people smugglers to pivot and focus on bringing over more unaccompanied children via dangerous journeys. The effect would be to put more young lives at risk and split up more families. It is, I say again, in the best interests of children to enact these provisions and stop the boats. It is these amendments that will encourage the people smugglers, not the provisions in the Bill.
The noble Lords, Lord German, Lord Purvis and Lord Coaker, pressed me to set out the evidence underlying the purpose of the Bill. It is the Government’s view that if a person arriving illegally in the UK is faced with the prospect of being detained on arrival and swiftly returned to their home country, or removed to a safe third country, they will not pay the people smugglers thousands of pounds to provide them with passage across the channel.
We recognise the particular vulnerabilities in relation to unaccompanied children. That is why the Bill provides that the duty to make arrangements for removal does not apply until they reach adulthood. However, as I have explained, the Bill confers a power to remove unaccompanied children. This is not new but reflects current policy. This will be exercised, as I have said, in very limited circumstances, taking into consideration the best interests of the child. Following amendments brought by the Government at Report in the Commons, this clause now expressly sets out the circumstances in which the power to remove unaccompanied children may be exercised.
Turning to Amendment 16A, I first comment that the noble and learned Baroness set out what is likely to be an exceptional scenario. That said, she has a point in that an unaccompanied child who is subsequently adopted in the UK by a British citizen has an automatic route to British citizenship. They would therefore not be subject to the citizenship bans in Clauses 30 to 36. In this scenario, we agree that it would not be appropriate for the duty to remove to be applied to that child. We can address this by using the regulation-making power in Clause 3(7) to provide for exceptions to the duty to remove. An amendment to the Bill is, therefore, not required. In addition to adopted unaccompanied children, such regulations would also cover any other cohorts to whom the duty would apply but who exceptionally obtain British citizenship following their arrival in the UK. I hope that the noble and learned Baroness and my noble friend Lord Cormack will be reassured by this.
Amendment 18 from the noble Baroness, Lady Hamwee, is on one level unnecessary in that the regulation-making power in Clause 3(7) could be used to deliver the desired outcome. However, I come back to the aim of the Bill: namely, promptly to remove from the UK those who meet the conditions in Clause 2. We have brought forward a robust legal scheme that will enable us to do just that and I urge your Lordships not to add caveats, exceptions and exemptions to the Bill such as to make the scheme unworkable.
In answer to the noble Lord, Lord Alton, I should add that I very much value the continued dialogue we are having with the Children’s Commissioner for England. She recently met the Immigration Minister and me, and I am due to meet her again soon to discuss the Bill.
Lord Alton of Liverpool (CB)
My Lords, that point was specifically about the alignment of the Children Act with this legislation. Clauses 17 and 20, which deal with standards of accommodation, were raised by several noble Lords. Is the Minister intending to say something about that before he moves on?
Lord Murray of Blidworth (Con)
Clearly there are other provisions in relation to the standards of detention in the detained estate in relation to children. In the event that they are not detained, the usual prevailing regulations will apply and I am happy to write to the noble Lord with more detail in relation to that.
The noble Lord, Lord German, referred to the recommendation of the Delegated Powers Committee in relation to the regulation-making power in Clause 3(7). We are studying that committee’s report carefully and aim to respond before Report.
The noble Lord, Lord Coaker, asked about the use of force. We will address that point when we reach Amendment 70 on Wednesday.
In conclusion, Clause 3 adopts an appropriate balance in respect of unaccompanied children and, in those circumstances, I invite the noble Baroness, Lady Meacher, to withdraw her amendment.
Lord Purvis of Tweed (LD)
The Committee noted the Minister confirming that there would be no duty on Ministers to ensure that adequate reception arrangements are in place for an unaccompanied minor to be received. That is tragic. Can he also answer my question with regard to the fact that the only place at the moment with which the Government have an MOU is Rwanda? Are there any facilities for children in Rwanda that the Government have agreed-?
Lord Murray of Blidworth (Con)
As I say, the occasions when a child will be removed will be very exceptional and the two cases that are envisaged are for family reunion, therefore reception facilities will not be required, or if it was a return to a safe country, and that of course would not arise unless it was a Rwandan child. In those circumstances, I do not see the particular purpose of the noble Lord’s question.
Lord Purvis of Tweed (LD)
The other category does apply. If it cannot be to the safe country of origin, it applies to the schedule countries. The only scheme that we have at the moment, if it is not a safe country, would be Rwanda, so it is a simple question: are there any facilities for children in Kigali which the Government have agreed?
Lord Murray of Blidworth (Con)
As I said, the power will be exercised very exceptionally. I am happy to go away and look into that point, and I will write to the noble Lord on it.
Baroness Lister of Burtersett (Lab)
I asked a number of questions around the child rights impact assessment. Please do not say that we will get it in due course, because I quoted from the UN committee’s guidance on impact assessments and it was very clear that it should be shaping the policy process from the word go—so it must exist. Why do we not have it? It is good that the Children’s Commissioner is now being involved in discussions, but she complained that she was not consulted prior to the publication of the Bill. Given the impact on children, surely that is grave discourtesy to the Children’s Commissioner.
Lord Murray of Blidworth (Con)
From my experience, the Children’s Commissioner was involved, certainly while the Bill was passing through the other place, but I will look further into that point on timings. However, the noble Baroness is absolutely right that it is very important that she is engaged with in full in relation to the development of this legislation in so far as my personal view goes. In relation to the point about the child impact assessment, I am afraid that, however much it will disappoint the noble Baroness, I must revert to the usual answer and say that it will be provided in due course—but I of course take away the sentiment that she has evinced.
Baroness Butler-Sloss (CB)
In relation to the situation when the child becomes 18, have the Government taken into account the impact on younger children who may have spent many years in this country and are then basically deported?
Lord Murray of Blidworth (Con)
The noble and learned Baroness is quite right that it is a very difficult balance that we have to draw. The difficulty is that we cannot allow there to be a loophole which incentivises people smugglers to put young children into boats and expose them to greater danger. There is clearly a balancing act to be performed. There are powers in the Bill, as the noble and learned Baroness will have seen, in relation to exceptional circumstances. However, the principle is that a minor will be removed at the date of their majority. I should add, in relation to a point that was raised in the speeches, that of course children become adults at 18, and that is recognised in international instruments. I appreciate that children develop at different rates, but that is the legal position, as I am sure the noble and learned Baroness will agree.
Lord Coaker (Lab)
Further to the point made by the noble and learned Baroness, Lady Butler-Sloss, can I ask the Minister to look at this? I raised it in my remarks as well. My noble friend Lady Lister raised the case of an eight year-old. There is a problem here. I appreciate the point the Minister made, but there is a very real problem, as the noble and learned Baroness, Lady Butler-Sloss, mentioned. If you have a child who is 10 or 11, they will be here for eight years and will then be deported at 18. Can the Minister at least go away, have a look at this and discuss with his officials whether there is a way of being consistent with the Bill, as the Minister would have it, but also reflect on that as particular point that causes problems?
Lord Murray of Blidworth (Con)
I assure the noble Lord that these points have received bags of consideration, not least from me, because they are very difficult. Of course, the length of time a child is present is a material factor. I am glad to say, as I said in my earlier remarks, that the vast bulk of children who are found in the small boats are not in the eight to 10 age bracket but are more likely to be 16 or 17. I can hear the noble Lord saying sotto voce that I have not answered the question. The answer is yes, of course I will carry on thinking about it, but it is a difficult question. In the Government’s view, we have come to the only logical solution that does not provide a very large hole in the scheme of the Act.
Baroness Brinton (LD)
The Minister made reference to the balance that the Government believe there is in the Bill around unaccompanied minors and encouraging smugglers. There have been a lot of speeches in this group about the rights of the child. Article 2 says they apply to every child; Article 4 says that Governments must do all they can to make sure that every child can enjoy their rights; and Article 22 on refugee children says Governments must provide them with appropriate protection and assistance to help them enjoy all the rights of the convention. How is that balancing the rights of the child? I wonder whether the Minister could write to compare and explain—otherwise, I can see that the UK will have to withdraw itself from the rights of the child.
Lord Murray of Blidworth (Con)
I do not need to write to answer that. The answer is that there is nothing incompatible with the UNCRC, because obviously a child who is here is having all their rights as a child respected, and if they are exceptionally removed under the circumstances described in the Bill it will be in a manner that is compliant with the UNCRC, particularly if it is for family reunion or for return to a safe country, which is presumably also a signatory to the UNCRC and will afford them their own rights.
Baroness Brinton (LD)
With the greatest respect to the Minister, we have not yet seen the detail. That is the problem. The Minister has outlined two or three areas and said there will be others. It is not clear to this Committee exactly what those details are. I will repeat the earlier request: will he please write and set them all out?
Lord Murray of Blidworth (Con)
To my mind, I have set out the detail, but of course I will go back and give it further thought.
Lord Kerr of Kinlochard (CB)
The Minister made a slightly unconvincing effort to persuade us that what is envisaged is in the best interests of the child. It rested on a couple of planks. One was that the safest route for the child will be to stop in the first safe country they come to. Hundreds of thousands of them do. If you go to look at the camps in Turkey, Greece or the Lebanon, you see that there are hundreds of thousands of unaccompanied children who have fled from conflict zones and are there. I am not sure that it is in their best interests to be there. There is a minuscule number who come here, perhaps because they speak English and not Greek or Turkish, perhaps because they have family or connections here, or perhaps they have the possibility of a home here. I cannot see why it is in their best interests to go into the camps in the first safe country they come to you and not come to their connections, family or prospects in this country.
Lord Murray of Blidworth (Con)
I know that the noble Lord and I do not agree, but the international law position is that children, and indeed asylum seekers, cannot be selective about where they wish to seek asylum. It is not an evaluative decision that an applicant can make. That is not the way the refugee convention works and, as we made clear at Second Reading, and as I think was widely accepted across the House, we sadly cannot take everyone who would want to come here—and that, I am afraid, is almost the logical corollary of what the noble Lord suggested.
Lord Hannay of Chiswick (CB)
My Lords, the Minister has chosen not to reply to various points made by the noble Baroness, Lady Lister, the noble Lord, Lord Kerr of Kinlochard, and me about conformity with the UN Convention on the Rights of the Child. He has simply stated, “In our view it’s fine”. The committee set up at the United Nations to overview this has considered this legislation and, as the noble Baroness, Lady Lister, said, has come to the view that it needs to be amended—a view that is rejected by the Minister. Presumably the UK was represented on that committee. Can the Minister give the Committee an account of the British representative’s statement in reply to the criticisms that led to it adopting that opinion?
Lord Murray of Blidworth (Con)
As the noble Lord knows, that is not something that I would have to hand in the course of the discussion of this amendment, but I will of course look into it.
Baroness Chakrabarti (Lab)
I hope the Minister will forgive me, but a narrow but important point of principle was raised by both the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Purvis of Tweed; they spoke on different matters but on the same issue of principle. One case was about what would happen to a child who came to this country as an infant and was adopted; another, put by the noble Lord, Lord Purvis of Tweed, concerned a child who would not be returned to adequate reception arrangements. I believe that the Minister said to the noble and learned Baroness, Lady Butler-Sloss, that we can deal with that in regulations—so nothing to worry about there—and the answer to the noble Lord, Lord Purvis, was that the Government have no intention of removing children to a country which, even if it meets the other criteria in the clause, does not have adequate reception arrangements for an unaccompanied child.
The whole structure of this so-called robust legislation is about creating tightly crafted duties to tie the hands of the Secretary of State. We know what that game is: it is about ensuring that we have, in effect, ousted the court’s supervisory jurisdiction. Powers become “duties to remove” and then, because there is a little ounce of compassion in relation to children, they say they will flip the duty and so there will not be a duty but, in certain circumstances, a power to remove even unaccompanied children. Given that this is the approach of the scheme, why on earth cannot comfort be given in the Bill to both the noble and learned Baroness and the noble Lord on those two limited circumstances? Why can the Bill not say that a child who came as an infant and who has now been adopted by a British national cannot be removed? For a child who would otherwise be removable because they have an identity document—there is a thought—or sent to a country where they are a national but there are no reception arrangements, why can it not be a criteria that there should be adequate reception arrangements? Why cannot that be in a Bill that is so tightly and robustly drawn by the Home Office?
Lord Murray of Blidworth (Con)
The noble Baroness is always a powerful advocate but, in this instance, these provisions are already clear. As I have said, and for the reasons that I have explained, there is no need, in those limited circumstances, for further exploration in the Bill. As I have said, these are things that we can explore, and doubtless will return to in other parts of the Bill, but for the moment I am afraid there is no need for further additions in relation to those areas.
Lord Touhig (Lab)
In 28 years of service in this House and the other place, I have never had more difficulty in getting an answer to a question.
The Minister has responded several times, and I spoke about it earlier this afternoon. He confirms that local authorities alone have the statutory power to look after these unaccompanied migrant children. He confirms in a Written Answer that the Home Office does not have corporate parent responsibility. So can he tell us which Act of Parliament the Home Office is using to detain these children and put them into these hotels, or—I always say never assume but I am going to break my rule—are we to assume that the Government know they are acting unlawfully?
Lord Murray of Blidworth (Con)
I must apologise to the noble Lord for not addressing that point in my remarks; I did mean to do so. It is a topic that the House has canvassed in Oral Questions on a number of occasions, particularly, as I seem to remember, in the winter of last year.
The present position will change when this Bill passes. As the noble Lord will have seen, there are provisions in the Bill relating to the transfer of responsibility for children, which set out the responsibility in the context of unaccompanied children. If the noble Lord looks, for example, at Clause 16, he will see that it concerns
“The power to transfer children from Secretary of State to local authority and vice versa”.
The present position arose as a result of the way in which the emergency in the channel has come about. As I said in my Answer, which was very fairly read out by the noble Lord, the clear position is that the responsibility should be for the local authorities, save for the circumstances described in Clauses 15 to 20.
Lord Scriven (LD)
In trying to answer my question, the Minister just reiterated what it says in the equality impact assessment. It was an important question. If the central tenet of the Bill is that children—accompanied or unaccompanied—not being given any dispensation will act as a deterrent, where is the evidence for that? In answering, the Minister said that this was the view of the department. Well it is the view of some children that the tooth fairy exists but, looking at the empirical evidence, it is quite clear that this may not be so. My question is clear: on what empirical evidence is the view of the department built, and when will this House get to see that evidence?
Lord Murray of Blidworth (Con)
It is a fairly standard rhetorical tool to ask where the evidence is but in this kind of field we have to operate looking forwards as to what might happen as a consequence of legislation, applying our own experience, and particularly that of the department in administering the UK border. It is the department, I would suggest, that is in a position to come to a view on these matters. It is not simply a case of some unqualified person reaching that assessment. The net effect is that it is the opinion of the department—
Lord Murray of Blidworth (Con)
It is the opinion of the department that a person would not pay a people smuggler to cross the channel if they were going to be detained and removed. It stands to reason, whatever the noble Baroness, Lady Jones, might shout from a sedentary position.
Lord Scriven (LD)
So the Minister agrees that this is not just about small boats; this is about the whole refugee and immigration system. Where is the evidence that the provisions in this Bill will meet the central issue that the Government wish to address and act as a deterrent to children, whether accompanied or unaccompanied. Where is the evidence?
Lord Murray of Blidworth (Con)
Obviously, as these provisions are not in force, there is no evidence of the impact of these measures. The noble Lord appears to require me to look into a crystal ball. We can make reasonable conjectures about the effect of these measures, and that is what we have done.
Baroness Meacher (CB)
Some time ago, the Minister asked me if I was willing to withdraw my amendment; I have a feeling that I ought to respond to that request.
This has been an extraordinary debate; I have never known there to be a debate following a request of the person to withdraw their amendment. The speeches from right across the Committee have been extraordinarily and unbelievably powerful because of course this is such an emotive subject. This Government want to detain and lock up children—accompanied, not unaccompanied, in the middle of an adoption or whatever else—in the most appalling accommodation. We know that, because this Government want to copy the model of the Greek islands, where the national view is that that accommodation is unacceptable and inhumane. We know that. That is what the Home Secretary wants to do. It is not surprising that people feel rather strongly against that proposal. That is just part of the proposition. The other is that, once children grow up, whether they are unaccompanied, adopted, leading normal lives over here or whatever else, they should be removed from this country, and of course regulations may determine the circumstances in which they may be required to be removed.
This is an appalling Bill, if I may say so. In a way, the application of the Bill to children just sums up the depth of the inhumanity of this Bill. I like to think that our Minister perhaps does have humanity and that he does respect our international obligations, and our 1989 Act and the rest of it—but he is acting and speaking on behalf of the Home Secretary, and I do seriously question whether she has the humanity that we all want her to have.
It was very important that we not only heard incredibly powerful speeches from the Labour Party, the Liberal Democrats and Cross-Benchers, but also that the noble Lord, Lord Cormack, made a point on which I think we all agree: this Bill does not reflect what we on any Bench expect from the Conservative Party. I thank the noble Lord, Lord Cormack. That is why there is such an incredible unanimity of view that these clauses—Clause 3, Clause 4 and the rest of them—should not stand part of this Bill.
All I can do here is, for today, withdraw Amendment 14 on the basis that without a doubt these matters will return on Report.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this group focuses on the disregarding of protection claims, trafficking claims, human rights claims and judicial review, as outlined first in Clause 4. This is quite a large group, with different strategies to remove or edit Clause 4 to remove the duty on the Secretary of State to declare human rights claims and other claims inadmissible if the person arrives into the UK illegally.
My noble friend Lord Dubs has tabled Amendment 23, which would mean that a protection or human rights claim must be considered if the person has not been removed within six months. In his very eloquent speech he said that it would have the effect of trying to reduce the number of people who are effectively in a permanent limbo—he gave the figure of 160,000 who are stuck in this status. As he said, the amendment goes a little way to ameliorating this position. I am glad that the right reverend Prelate the Bishop of Coventry supports my noble friend.
My other noble friend Lord Hunt’s series of amendments beginning with Amendment 19A would ensure that potential and recognised victims of trafficking would not be removed before they got the opportunity to submit an application to the national referral mechanism and have it considered. His amendments would remove trafficking from the list of claims that the Secretary of State can ignore, so although they would help trafficking victims, they would not help others making claims under different legislation, which would remain on the list. In my noble friend’s speech he referred to the Liberty brief, which I also found extremely helpful, and to the statistics there about the increase in the NRM claims we have seen over recent years, to which the Home Office makes particular reference. My noble friend made the point that the Bill as currently drafted would dissuade victims of modern slavery from coming forward.
As a youth magistrate, I very much recognise the point about the modern slavery system and the national referral system getting completely overwhelmed by the number of referrals into that method of checking for modern slavery. Certainly, in my experience as a youth magistrate, it almost logjammed the system of reviewing what I might call normal criminal cases referred into the NRM, which were sometimes stuck in that system for literally one or two years.
The noble Lord, Lord Carlile, gave a couple of very appropriate anecdotes. He did not particularly explain the amendments in the name of the noble and learned Lord, Lord Etherton, but, as he said, they were fully explained by the noble and learned Lord himself. I think the central point that the noble Lord, Lord Carlile, was making was that the people who find themselves making appeals are not an unworthy cohort. They very often win their claims, so surely we should be reinforcing and backing up the systems we have signed up to in international law for protecting claims of legitimate claimants.
I think all other noble Lords supported my noble friend Lord Hunt’s amendments; in fact, most noble Lords supported all the amendments in this group. I just want to make a particular aside to the noble Lord, Lord Morrow, who also supported my noble friend Lord Hunt. As he will know, he facilitated a trip for me to Ballymena district court, where I sat in on a youth court. I found it very interesting that the Modern Slavery Act has not been enacted in Northern Ireland. I have tried to get an explanation for that but, as far as I know, I have not received one. Although I am sure that the noble Lord supports the Modern Slavery Act, I find it surprising that the Act has not been enacted for young people in Northern Ireland.
As I said, I think all noble Lords who have spoken on this group of amendments have supported them. In many ways they go to the heart of the Bill, because it is where the Government are seeking to step away from some of the commitments they have made in a number of treaties and in a number of different forums over many decades. It is for the Government to justify why they should take such a radical step.
Lord Murray of Blidworth (Con)
My Lords, Clause 4 provides that if a person meets any of the four conditions set out in Clause 2, regardless of any claim made by an individual, including a protection claim, a human rights claim against their country of nationality or citizenship, a claim as a victim of modern slavery or human trafficking, or an application for judicial review in relation to their removal, they will still fall under the duty to remove.
As such, if a protection or human rights claim is made, this will be declared as inadmissible. Inadmissibility is a long-standing process and is explicitly provided for in UK law, most recently in the strengthened provisions in the Nationality and Borders Act. So although the noble Baroness, Lady Jones, was praising the innovation of the Home Office, the concept of inadmissibility is indeed a long-standing one that appeared in immigration legislation from the turn of the millennium.
As the noble Lord, Lord Ponsonby, correctly identified, Clause 4 is critical to the Bill. By expanding the scope of existing inadmissibility provisions to apply to anyone who has arrived illegally to the UK, the Government’s intention is made clear: namely, that those who fear persecution should claim asylum in the first safe country they reach and not put their lives at risk by making unnecessary and dangerous journeys to the UK.
We know that some people make spurious claims in a conscious attempt to frustrate their removal. Provisions in Clause 4 will restrict the right to challenge the decision to remove those who enter the UK illegally. In doing so, it will put a stop to the endless merry-go-round of legal challenges that those with no right to be here use to thwart their removal. In 2022 there were 60% more small boat arrivals—45,755—than in 2021, when there were 28,526. Our asylum system is consequently under significant pressure, and with this inexorable rise in the number of illegal arrivals adding more pressures to our health, housing, educational and welfare services, the Government must take action and prioritise support for those who are most in need.
We remain committed to working with the United Nations High Commissioner for Refugees to identify those who are most in need so that the UK remains a safe haven for the most vulnerable. Once illegal migration is under control, we will create more safe and legal routes following consultation with local authorities, and that will be subject to an annual cap set by Parliament—we will come on to debate those provisions later in Committee.
The Bill will send an unequivocal message that if you come to the UK on a small boat or via another illegal route, you will never be able to return to the UK or build a life here. It is only right that we prioritise people who come here safely and legally, and it is unfair that those who enter illegally should benefit over those who play by the rules. If people know that there is no way for them to stay in the UK, they will not risk their lives and pay criminals thousands of pounds to get here.
Having set out the purpose of Clause 4, I turn to the specific amendments. First, Amendment 19A and the other amendments in the name of the noble Lord, Lord Hunt of Kings Heath, effectively seek to exclude all potential victims of modern slavery from the duty to remove and the associated detention powers until a conclusive grounds decision has been made following a referral to the national referral mechanism, or NRM.
There is no escaping that, regrettably, the NRM affords opportunities for those who enter the UK unlawfully to frustrate their removal. In 2022, there were around 17,000 referrals to the NRM—the highest annual number to date and a 33% increase on 2021, when there were 12,706, and a 625% increase on 2014, when there were 2,337. The average time taken from referral to conclusive grounds decisions made in 2022 across the competent authorities was 543 days. Given these decision times, it is self-evident that, were the noble Lord’s amendments to be made, the intentions of this Bill—namely, to deter illegal entry and to allow for the swift removal of those who do enter illegally—would be undermined.
Lord Purvis of Tweed (LD)
I am grateful to the Minister. I am listening very carefully to what he is saying regarding the loophole. My understanding is that a referral to the NRM can be made only by a first responder authorised by the Home Office; that first responders have to be certified for their professionalism by the Home Office; and that the referral mechanism goes to a dedicated individual within the Home Office. Why is the Home Office so incompetent that it is allowing this system to abuse itself, given the fact that only the Home Office and first responders can refer?
Lord Murray of Blidworth (Con)
It is not the Home Office abusing itself—to use the noble Lord’s phrase. The reality is that it is the large number of claims made by people advised to make claims, often at the last minute, in order to delay removal. When people are referred to the national referral mechanism, they give an account of slavery that then requires investigation. A threshold is applied that means that the allegations are looked into, and the number of people making applications now has given rise to the length of time to determine those claims.
If I may, I will respond to points raised by the noble Lords, Lord Alton and Lord Morrow.
Lord Murray of Blidworth (Con)
I will come back to the noble Lord, Lord Purvis, at the end. I can confirm that removing this incentive is compliant with our international obligations under the Council of Europe Convention on Action against Trafficking in Human Beings—ECAT. Indeed, ECAT envisages that the recovery period should be withheld from potential victims of trafficking on grounds of public order. There is a clear and unprecedented threat to public order through the loss of lives and the pressure on public services that illegal entry to the UK is causing. I again remind noble Lords that the number of small boat crossings has risen from 8,500 in 2020 to over 45,000 last year. We will have a fuller debate in respect of the modern slavery provisions when we reach Clauses 21 to 28 in Committee, but I cannot agree to the noble Lord’s proposition that the foundation of those provisions in subsection (1)(c) be removed from the Bill.
Amendment 20, spoken to by the noble Lord, Lord Carlile, seeks to strike out subsection (1)(d), the effect of which would be to enable any judicial review to put a block on removal until the legal proceedings had been concluded. It seems to me that the key words—and perhaps I could invite the noble Lord to refer to the Bill—are in Clause 4(1)(d), which relates to an application for judicial review in relation to their removal. As my noble friend Lord Horam indicated, such an amendment would again undermine a key feature of the scheme provided for in the Bill. We must stop the endless cycle of late and repeated challenges that frustrate removal under the current law. Of course, it is right to say, too, that there is no general block on non-suspensive judicial review provided for in the Bill.
The Bill provides for two types of claims that would suspend removal, and we will come on to those in due course in Committee. Those provisions provide sufficient remedies to challenge a removal notice and afford the necessary protection to a person suffering serious and irreversible harm were they to be removed to the specified third country. All other legal challenges, whether on ECHR grounds or otherwise, should be non-suspensive. Therefore, Clause 4(1)(d), read with Clause 52, does not oust judicial reviews; those provisions are simply making it clear that any judicial review cannot block removal.
As regards Amendment 21, tabled by the noble and learned Lord, Lord Hope of Craighead, and spoken to by the noble Lord, Lord Anderson, I have already indicated that inadmissibility is not a new concept. It has been a feature of the UK asylum system for some time and is already enshrined in the Nationality and Borders Act 2022. While I welcome the Constitution Committee’s scrutiny of the Bill, I cannot accept its characterisation of the provisions as having significant rule of law implications. What does have significant implications for the rule of law, I suggest, is tens of thousands of people arriving on our shores each year in defiance of immigration laws. These individuals should be claiming asylum in the first safe country they reach, and, in these circumstances, it is legitimate to declare any protection claims inadmissible to the UK system.
The noble Lord, Lord Anderson, asked what would happen to an asylum or human rights claim that had been declared inadmissible, but where the person had had their factual or suspensive claim accepted. In such a case, the person’s claim would be considered under the existing law. That might include existing inadmissibility provisions. I again remind the Committee that inadmissibility is a long-standing process intended to support the first safe country principle. It is an established part of the international asylum procedures applied across the EU and specifically provided for in UK law, most recently in the strengthened provisions introduced in the Nationality and Borders Act 2022.
Lord Anderson of Ipswich (CB)
I am grateful to the Minister. In the circumstances that he accurately sets out, could a declaration of inadmissibility be reversed so that the human rights claim or the protection claim could proceed in the normal way?
Lord Murray of Blidworth (Con)
The provisions of the Bill in relation to that are a little involved, and I will write to the noble Lord.
Amendment 23 in the name of the noble Lord, Lord Dubs, also deals with inadmissibility. It seeks to provide for asylum and human rights claims from those who have not been removed within six months to continue to be admissible within the UK. In effect, the amendment seeks to perpetuate our current broken asylum system. Again, it seeks to chip away at and put holes into the scheme provided for in the Bill, undermining its coherence and effectiveness. This amendment would regrettably again encourage illegal migrants to use every tactic to frustrate their removal, in the knowledge that after six months their asylum claim would be processed. Moreover, the amendments would unfairly result in individuals who have arrived illegally in the UK being prioritised alongside those who have availed themselves of our safe and legal routes—something which, I suggest to the Committee, is manifestly unfair.
The Bill must send a clear message that if you come to the UK via an illegal route, you will never be able to return to the UK or build a life here. The benefits of settlement should be open only to those who abide by our rules. The whole construct of the scheme is to enable illegal migrants to be removed within days and weeks, not months and years. There is no prospect of someone being left in perpetual limbo, as suggested by a number of noble Lords, including the noble Lord, Lord Dubs, and the right reverend Prelate the Bishop of Coventry. Amendment 23 is therefore redundant. I therefore invite the noble and learned Lord, or his proxy, not to press Amendment 20.
Lord Alton of Liverpool (CB)
My Lords, can the Minister answer the question that I put to him about the disapplication of a national referral mechanism in the case of children, a point which has been raised by the Children’s Commissioner? If he does not have the answer now, can he write to me?
Lord Murray of Blidworth (Con)
Forgive me; I intended to address the noble Lord’s point in relation to that. Obviously, the provisions in Clause 4 make specific reference to the power to remove children, which is contained in Clause 3. That in itself is a safeguard to protect the welfare of children. It operates in a way that promotes the interests of children, I suggest, but I am happy to look further at that point and will take it away.
Lord Purvis of Tweed (LD)
Can I clarify the point that I was making? The Minister alluded to maybe coming back to me. He implied that the problem arose with those who claim, when arriving here under what the Government say is an illegal route, that they are victims of trafficking. The review of that happens only after a referral is made, and there cannot be a self-referral. He seemed to blame the threshold on which that assessment is made as to whether a first responder then submits that person to the NRM. That threshold is the Home Office threshold and the first responders are Home Office- licensed. Why does the Minister think that the Home Office is getting it so wrong?
Lord Murray of Blidworth (Con)
I am afraid that I disagree. The Home Office is not getting it wrong. As I already set out in my remarks, the numbers of people claiming to have been modern slaves in this scenario indicates that there is extensive abuse. I do not think that the noble Lord could say anything else, looking at the very persuasive statistics of people in detention. I simply do not agree with him on that point.
Lord Purvis of Tweed (LD)
If we have found that there is no loophole in the system, that is good—so it is just the numbers. Therefore if the number of those who are trafficked goes up, that is the problem. It is not that there is a loophole in the system meaning that a higher proportion are falsely claiming that they are being trafficked. What message does that say around the world? The UK is now blind to the individual merit of a young woman being trafficked if there are many young women being trafficked—that is when we close our doors.
Lord Murray of Blidworth (Con)
That is not the case. Much as we might wish it to be, the simple reality, I am afraid, is that our modern slavery protections are being abused. The measures in the Bill directly address that.
Lord Scriven (LD)
If they are being abused, what is the percentage success rate of people who were referred in the last two years?
Lord Murray of Blidworth (Con)
I am afraid that I do not have those statistics to hand, but I can write—
Lord Scriven (LD)
I can help the Minister. I think it is 82% and 91%, on average. The issue is therefore that, once these cases have been looked at, the Home Office is granting people asylum based on them being part of the modern slavery system.
Lord Murray of Blidworth (Con)
The noble Lord will be aware that there are two stages to the process—a reasonable grounds decision and a conclusive grounds decision—and different statistics. A light touch has hitherto been applied in relation to reasonable grounds. I will need to look into the precise statistics and revert to him on that. I am afraid I do not recognise those statistics immediately, so they will require further research.
Member's explanatory statement
This amendment is consequential on the amendment in the name of Lord Murray of Blidworth at page 5, line 38.
(c) any other application to a court or tribunal which is required by an enactment to be determined by applying the principles that would be applied by a court on an application within paragraph (a) or (b).”Member's explanatory statement
This amendment expands the definition in the Bill of “application for judicial review” to cover in particular an application to the judicial review jurisdiction of the Upper Tribunal or the Special Immigration Appeals Commission.
Member's explanatory statement
This amendment is consequential on the amendment in the name of Lord Murray of Blidworth at page 5, line 38.
Student Visas
Lord Murray of Blidworth Excerpts(12 months ago)
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Lord Coaker (Lab)
My Lords, the contribution of international students to our universities and, indeed, our communities, is immense and a great asset to our country. Since 2018, there has been a tenfold increase in the number of dependants joining students in the UK, so we have not opposed the changes the Government propose. However, as usual with the Government, there is no impact assessment and no detail—just vague assertion. What assessment have the Government made of the number of people this change will affect in terms of both students and dependants, and what do the Government believe will be the actual impact of these rule revisions on the numbers?
The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)
I thank the noble Lord for that question. The numbers are these. In March 2023, 477,931 sponsored study visas were granted to main applicants, which was 22% more than in March 2022. In the year ending March 2023, almost one-quarter, 24%, of all sponsored study-related visas granted were to dependants of students—149,400—compared with 15% in the year ending March 2022. Our indication is that 88% of those dependant visas were to those undertaking taught postgraduate courses, so the rule changes will have the effect of greatly reducing the availability of the dependency visas to those who might otherwise have used them, and therefore reduce the net intake.
Lord Wallace of Saltaire (LD)
My Lords, I declare an interest as someone who used to run the research side of the international relations department at the LSE. We had well over 50 research students while I was there. To my knowledge, all but one returned to their country of origin, or went elsewhere, after completion of their studies, and the one who remained, an Indian, is now teaching in a senior position in a British university. Is this a real problem, or is it part of the muddle of our migration statistics? Should we not be separating students who come here for either one or three years as temporary migrants and distinguish them from permanent migrants? The problem of our current migration statistics is that they lump everyone together, which as a result makes the whole problem look worse than it is.
Lord Murray of Blidworth (Con)
I am afraid that I must disagree with the noble Lord: it is a real problem, for the reasons I have just read out to the Chamber, with the statistics demonstrating the increase in dependants attending, in particular those from two countries. The numbers are startling and required action to change the rules, and I am very grateful for the support from the Official Opposition in doing that.
Lord Lancaster of Kimbolton (Con)
My Lords, may I raise the issue of British Overseas Territory passport holders having to apply for a student visa to come and study here? Not only do they have to apply for a visa but they are not allowed to apply directly; they have to apply via a high commission in a third-party jurisdiction, which is bonkers. Can we not allow them to come here directly without applying for a visa? They are British citizens after all. At the very least, if the Government will not change their policy, please may they apply directly from their own homes in the British Overseas Territory?
Lord Murray of Blidworth (Con)
The noble Lord raises an issue with which I am familiar and there is much to commend in what he says. Certainly, it is something that I will look into.
Baroness Blackstone (Lab)
My Lords, I do not think the Minister answered the second part of the question asked by the noble Lord on the Liberal Democrat Benches. Why are we continuing to define international students as immigrants when they are clearly not in that category? Is he aware that nearly all OECD countries that have international students in considerable numbers do not define them as immigrants or migrants? They define them in a special category as overseas students. Why do we not move to doing that?
Lord Murray of Blidworth (Con)
It is clear that the students who have these visas are entitled to work for 20 hours a week, the dependants of students are entitled to work in an unrestricted way and they are obviously users of services provided by the state. For all those reasons, it makes sense that they be included in the net migration figures.
Lord Bilimoria (CB)
My Lords, I speak as co-chair of the All-Party Parliamentary Group on International Students and the president of UKCISA. Is the Minister aware that we are in a global race for international students? We are against Australia, the United States of America and Canada, in particular, and those countries offer far better postgraduate work opportunities than we do. We offer two years; Australia offers four, five and six years. Why do we keep including international students in our net migration figures? It is wrong and fooling the public. The USA and Australia treat them as temporary migrants, which is what they are. If you exclude international students from the net migration figures, maybe the Government will hit the targets they have wanted to hit for so many years.
Lord Murray of Blidworth (Con)
I refer the noble Lord to the answer I gave some moments ago. It is worth saying, in relation to the first part of his question, that these changes will ensure that the UK’s higher education establishments are focused on recruiting students based on economic value and not on dependants, whose value in terms of student fees and wages is minimal. We have been successful in delivering our international educational goal of hosting up to 600,000 students per year by 2030 almost a decade earlier than planned and expect universities to be able to adapt to reduce dependant numbers.
Lord Purvis of Tweed (LD)
Will the Minister answer my noble friend’s question about the two countries? Also, the current rules, which the Government are going to end, supported by the Labour Party, state:
“If you have a child while you’re in the UK, they do not automatically become a British citizen. You must apply for your child’s dependant visa”.
Can the Minister please reassure me that, under the Government’s plans, babies are not going to be separated from their parents?
Lord Murray of Blidworth (Con)
The two countries that send the most students with dependants are Nigeria and India. Our points-based immigration system prioritises skills and talent over where a person comes from, in any event. We consider any impact of our changes proportionate in achieving the overall aim of reducing net migration and allowing dependants only for a specific cohort of students with the types of skills the UK is specifically seeking to attract to assist economic growth. In answer to the second part of the noble Lord’s question, on whether one would separate a mother from a child, obviously every case is fact-specific but the principle remains that if you apply for a student visa for a course other than a research graduate study course, you are not entitled to bring a dependant.
Baroness Morris of Yardley (Lab)
My Lords, can the Minister just be clear? He talked with some pride about the Government’s international student strategy. If the outcome of this policy is fewer overseas students coming here to study at master’s level, will he consider that the policy has been a success or a failure?
Lord Murray of Blidworth (Con)
Clearly, the purpose of the policy is to bring down net migration.
The Earl of Clancarty (CB)
My Lords, can the Minister say when this policy is going to start? Can he promise that it will not affect students who have already had offers or are in the process of applying?
Baroness Lawlor (Con)
My Lords, will the Government consider the overall need to have a much wider debate about the benefits of overseas students to this country? As far as I know from this morning’s figures, up to 480,000 came, together with 136,000 dependants. Although there may be an overall benefit in economic gain and plugging the resources of cash-strapped universities, there are other problems. They include not only having to pay costs towards healthcare and housing—or taking up healthcare, housing and education where there are dependants—but costs to the universities themselves. Following what the noble Lord, Lord Wallace, said, many universities are now tailoring courses to the needs of overseas students. A wider debate will be needed in the education department about whether this is the right thing for our UK universities.
Lord Murray of Blidworth (Con)
I thank my noble friend for that question. She is absolutely right that it is a balanced question; that is why this package of measures is targeted to achieve the objective of reducing migration. In addition to the proposal to remove the entitlement to bring dependants unless you are on a postgraduate research programme, the other aspects will, I hope, address the matters raised by my noble friend. In particular, they are: removing a student’s right to switch into a work visa route before studies are complete; reviewing the maintenance requirements for people applying for visas; clamping down on unscrupulous education agents; and improving communications about visa rules to universities and international students, along with improved and more targeted enforcement activity by the Home Office.
Net Migration Figures
Lord Murray of Blidworth Excerpts(12 months ago)
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The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)
My Lords, I shall now repeat an Answer given to an Urgent Question in another place. The Answer is as follows:
“Net migration to the UK is far too high. That was already clear from the previous set of official data. The ONS has today amended its previous published estimate of net migration for the year ending June 2022 to 606,000. The statistics published today show that net migration has flatlined since then. In the year ending December 2022, they show that net migration remains at an estimated 606,000. These particularly high figures are partly due to temporary and exceptional factors, such as the UK’s Ukraine and Hong Kong BNO schemes. Last year, 200,000 Ukrainians and 150,000 Hong Kong British overseas nationals made use of routes to life or time in the United Kingdom. Those schemes command broad support from the British public, and we were right to introduce them.
This Government remain committed to reducing overall net migration to sustainable levels. That is a solemn promise we made to the British public in our manifesto, and we are unwavering in our determination to deliver it. This week, we announced steps to tackle the substantial rise in the number of student dependants coming to the UK. The package of measures will ensure that we can reduce migration while continuing to benefit from the skills and resources our economy needs, because universities should be in the education business, not the immigration business. We expect this package to have a tangible impact on net migration. Taken together with the easing of temporary factors, such as our exceptional humanitarian offers, we expect net migration to fall to pre-pandemic levels in the medium term.
The public rightly expect us to control our borders, whether that is stopping the boats and addressing illegal migration or ensuring that levels of legal migration do not place undue pressure on public services, housing supply or integration. The Government are taking decisive action on both counts. Under the points-based system that we introduced post Brexit, we can control immigration; we must and we will.”
Lord Coaker (Lab)
My Lords, net migration figures are at a record high, despite promises in every Conservative manifesto since 2010 to reduce these figures, with the 2019 manifesto pledging that overall numbers would come down. Despite the Minister’s Statement, it has clearly gone wrong and is not working. Would it not be a start to tackle the doubling of work visas? Would it not be a start to end the unfair wage discount in the immigration system, which is undercutting UK wages and exploiting migrant workers? Why allow a civil engineer from Spain, for example, to be paid a 20% lower salary than the going rate for a British civil engineer? Why do the Government not tackle migration by barring employers and companies from recruiting foreign workers unless they are paid the going rate? Would that not be a start to tackling the migration problem?
Lord Murray of Blidworth (Con)
Clearly, the increase in net migration has been the result of global events, such as the world recovery from the Covid-19 pandemic, and international events, as I outlined in the Statement, including the policy changes introduced as part of the new immigration system at the end of EU freedom of movement. All have had an impact on migration. The Migration Advisory Committee agrees that the discount available to employers employing foreign workers under the skilled worker route is a sensible solution for occupations where there are shortages, at least in the short term. However, no occupation should be on the shortage occupation list for ever. Sectors must therefore present a realistic strategy for ending their reliance on migration before such jobs can be added to the shortage occupation list, and present compelling evidence that they should remain.
Lord Wallace of Saltaire (LD)
My Lords, there is not time now, but perhaps the Government could initiate an informed cross-party debate on the long-term issues involved in migration. The pull factors in migration are that we have not been investing enough in education and training, and that companies have found it easier to recruit staff from abroad than to spend money training their own in too many instances. Also, in public health we need to reduce the number of people who are long-term unwell. There are also the push factors—climate change, conflict in other countries and, potentially, expulsion. The Turkish Government are talking about expelling several million refugees. The UK Government might wish to emphasise that we cannot manage migration without active international co-operation with our neighbours and others, which is almost entirely outside the current debate. Can the Government not attempt a constructive effort, to which I am sure other parties would respond?
Lord Murray of Blidworth (Con)
I am not quite sure what the noble Lord suggests would result from such a negotiation. Of course it is right that the Government discuss international migration issues on a regular basis. We saw that at the recent meeting of the Council of Europe. We recognise that no single measure will control immigration. As the impacts of temporary pressures become clearer, we will keep matters under review. The Government will continue to strike the balance between reducing overall net migration and ensuring that businesses have the skills that they need. We continue to support economic growth.
Baroness McIntosh of Pickering (Con)
My Lords, does my noble friend accept that a promise was made at the time of the referendum campaign that immigration would be reduced? Looking ahead to the forecast for this current year, mindful that he said in his reply that net figures would reduce, will the illegal migration forecast for 2023 be higher or lower than the figures that he has given us today?
Lord Murray of Blidworth (Con)
I am unwilling to engage in conjecture as to what the figures will be for the coming year, but it is certainly clear that the measures we have announced on the student route reform, which the House heard about on the previous Question, will have a considerable effect in reducing the levels of migration in those categories for the year commencing January 2024. We will have to see what the statistics reveal in due course.
Lord Bilimoria (CB)
My Lords, the Prime Minister has five priorities. One of them is to stop illegal migration through the boats crossing the channel. Everyone agrees that we must do everything we can to stop them. Another of his priorities is to grow the economy. If the Prime Minister wants this, why are we restricting businesses from getting the labour force they need if they cannot get it domestically? I just had a meeting with leading hoteliers. One of them is shortly opening one of the best hotels in London and is targeting under 100% occupancy: he cannot recruit the people he needs. We need to activate the shortage occupation list. That is the promise of the points-based system. That will help. If we exclude international students from net migration figures, we will not scare people with these high figures that are not a true representation of migration into this country.
Lord Murray of Blidworth (Con)
The noble Lord neatly identifies the balancing act that needs to be performed by the Government on net migration. Clearly the Government cannot permit circumstances to arise where employers utilise foreign labour over domestic labour for the pursuit of greater profit. Of course, the countervailing factor is the availability of labour. The Government are obviously aware of these issues and make their decisions accordingly.
Lord Dubs (Lab)
My Lords, will the Minister confirm that, of today’s high figure, asylum seekers account for approximately 8%, and that, even if the Bill we discussed yesterday and will discuss the week after next were to reduce that figure to zero, it would make virtually no difference to the net migration figures?
Lord Murray of Blidworth (Con)
The whole point of the Illegal Migration Bill is to prevent dangerous and illegal journeys across the channel and by other routes. It is addressing a different, specific issue, obviously with the added benefit that eliminating illegal migration would go towards the reduction of the net migration figure. But it is not suggested that the Bill is the sole answer to the problems arising from excessive net migration.
Lord Jackson of Peterborough (Con)
My Lords, I do not blame my noble friend or the Home Secretary: since the 2004 free movement directive, no Government have been honest about immigration with the British people, including my own party when in government. “Take back control” does not mean that, among other things, we should have spent £1.3 billion so far this year on asylum seekers, their accommodation and other illegal migration funding, which is more than we have spent from the levelling-up funds on the north-east, the north-west, and Yorkshire and the Humber.
Amazingly, I find myself in agreement with the Liberal Democrats and Labour Front Bench. I respectfully say to the Minister that the idea put forward about wage differentials by the noble Lord, Lord Coaker, is absolutely right. With respect to the noble Lord, Lord Bilimoria, for too long, business has been addicted to cheap, foreign labour and has failed to properly train and pay our own indigenous workforce. If we are to have an honest debate, he has to concede that.
Finally, I say to the Minister that these figures are a potential existential threat not just to my own party’s electoral prospects but to people’s trust in moderate, mainstream politics. The alternative looks a lot worse unless we solve this problem.
Lord Murray of Blidworth (Con)
I agree with some of what my noble friend has said. There is a measure of agreement across the House that the issue of salary discounts is very much in need of consideration. Of course, as the House will be aware, the Migration Advisory Committee is undertaking its review into the shortage occupation list, which I referred to a few answers ago. The Government asked the MAC to consider the 20% salary discount as part of the review when it commissioned it last year. We expect a report in the autumn, after which the Government will respond to any recommendations that it makes.
Baroness Bennett of Manor Castle (GP)
My Lords, in the migration figures out this morning, the figures for the asylum backlog—the number of people who have been waiting more than six months for an asylum decision—show that, despite the promise from the Prime Minister to eliminate much of the backlog by the end of this year, the figure has increased by 10,000. There are now more than 128,000 people waiting more than six months for an asylum decision. Would the Minister promise the House that the Prime Minister’s pledge will be met by the end of this year, given that we are now at the end of May? Surely it is time to allow those people to work—indeed, some of them could be working in the hotel to which the noble Lord, Lord Bilimoria, referred.
Lord Murray of Blidworth (Con)
As the noble Baroness knows, the Government are taking immediate action to eliminate the backlog of people waiting for initial asylum decisions by the end of 2023. The Home Office has already doubled the number of decision-makers and the number will double again. To further accelerate decision-making, the Home Office is driving productivity improvements by simplifying and modernising the system. We have doubled the number of decision-makers in 2021-22, as I said, and we will continue to do so.
Illegal Migration Bill
Lord Murray of Blidworth ExcerptsWednesday 24th May 2023
(12 months ago)
Lords ChamberRead Full debate Illegal Migration Act 2023 View all Illegal Migration Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 133-I(b) Amendments for Committee (Supplementary to the Marshalled List) - (24 May 2023)
Lord Coaker (Lab)
My Lords, I will just add my voice to the requests from various noble Lords across the Chamber for specific answers to these specific questions that have been raised; I think the Committee deserves those answers.
The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)
My Lords, Clause 1 sets out the Bill’s overarching purpose and provides an overview of the provisions in the Bill. The purpose of the Bill is to prevent and deter illegal migration and, in particular, migration to the UK by unsafe and illegal routes, by requiring the removal from the UK of individuals who arrive in breach of immigration control.
Subsection (2) then summarises the key provisions of the Bill that advance this core purpose, including the duty on the Secretary of State to make arrangements for the removal of persons from the UK who meet the conditions in Clause 2.
The numbers arriving on small boats in 2022 exceeded 45,700, and, as I set out at Second Reading, the Bill is essential to deal with these illegal, dangerous and unnecessary channel crossings. Putting the purpose of the Bill front and centre, right at the start of the Bill, will make it abundantly clear to all, including the illegal entrants themselves, NGOs, the courts and others, what Parliament’s intent is in enacting this Bill. As subsection (3) provides, the subsequent provisions in the Bill should be interpreted by the courts and others in line with this statutory purpose. Again, it is incredibly helpful to make this explicit on the face of the Bill, although I should add that subsection (3) simply reaffirms the established principle that the courts and others should interpret the Bill to deliver its purpose.
To assist this purpose, Clause 1 also disapplies Section 3 of the Human Rights Act 1998. As I have already explained in the previous debate, the disapplication of Section 3 will ensure that the Bill’s provisions will be interpreted to meet the legislative intent of Parliament, rather than strained interpretations by the courts to achieve compatibility with convention rights.
The noble Lords, Lord German and Lord Paddick, asked about the impact assessment. We have already published an equality impact assessment and will publish an economic impact assessment in due course. The noble Lord, Lord German, referred to the purported impact assessment published by the Refugee Council. We do not recognise the assumptions and costs referenced in that document. Any assessment of the impact of the Bill must also acknowledge the cost of not proceeding with it. Our broken asylum system is costing this country £3 billion a year, and over £6 million a day in hotel costs. This cannot continue. The noble Lord also seems to be labouring under an assumption that Clause 1—
Lord German (LD)
The noble Lord has made two points. I am particularly asking about this sentence in the Government’s ECHR memorandum—so the Government’s position. It says at paragraph 1.5 about the removal of Section 3 of the Human Rights Act:
“This does not affect the Government’s assessment of compatibility of the Bill with the Convention rights”.
Article 5 of the convention clearly states:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court”.
So is the paragraph in the memorandum compatible with what I have just read out? If so, it means that when people are detained, they will be able to take their cases to a court in this country.
Lord Murray of Blidworth (Con)
The answer to the question, if I have understood the noble Lord, is yes, but I think he misinterprets the purpose of Section 3 of the Human Rights Act. It is not the clause by which the articles of the European Convention on Human Rights are reflected in UK domestic law. Section 3 of the Human Rights Act invites a court to construe parts of other domestic statutes or secondary legislation compatibly with convention rights. It does not mean that this is the mechanism by which convention rights are actionable in UK law, which is the standpoint that I think the noble Lord, Lord German, appears to suggest is the basis for his point. I fear that, as a matter of legal analysis, I think that to be wrong.
The noble Lord also seems to be labouring under an assumption that Clause 1 somehow upsets the separation of powers. It does not. It simply makes it clear that in interpreting this legislation, judges should seek to advance the purposes of the Bill. The Bill, and actions taken under it, are still clearly capable of review in the courts, and individuals can seek to prevent their own removal by making a suspensive claim. So, the courts are still involved, and regulations are still subject to approval by Parliament. I hope the noble Lord can rest assured that on closer inspection, this Bill leaves our separation of powers undisturbed.
I also want to pick up on a point made by the noble and learned Lord, Lord Hope, who suggested that the Bill prevents human rights challenges. This is simply not the case. The Bill provides for two kinds of challenges that would have the effect of suspending removal. Other legal challenges, whether on European Convention on Human Rights grounds or other grounds, are not precluded, but they do not suspend removal. As I have indicated, Clause 1 makes the purpose of the Bill crystal clear for all to see. This will help to guide all decisions made by officials and immigration officers, Ministers, the courts and others in giving effect to the Bill. I commend the clause to the Committee.
Baroness Butler-Sloss (CB)
My Lords, I wonder whether the Minister can help me on this. The “strained decisions” of the courts is a phrase that has been used at least three or four times this evening. As a former judge, I find that difficult to understand. I would like some elucidation as to what is meant by “strained decisions” and what examples there are.
Lord Murray of Blidworth (Con)
The context of a strained decision, as the noble and learned Baroness will be aware, are circumstances where there is an ordinary, natural reading of a statute but a judge feels constrained to interpret the words of a statute in a particular way to give effect to a convention right. As the noble and learned Baroness is aware, this is a fairly obvious application of the term, and it is quite usual for such—perhaps more difficult—interpretations to be described as “strained”. I can certainly identify a number of examples, and I will write to the noble and learned Baroness in relation to them.
Lord Hannay of Chiswick (CB)
My Lords, the Minister is a persistent non-answerer of questions; I am a persistent asker of questions. The two questions I asked—I will repeat them at dictation speed if he wishes—were echoed by the Liberal Democrat Front Bench spokesman and the Labour Front Bench spokesman. I think we are due a reply to both those questions. Does the Minister have the answers, or do I have to repeat the questions?
Lord Murray of Blidworth (Con)
The noble Lord does repeatedly ask questions, and I repeatedly answer them. As he identifies, there is a difference in interpretation of Article 31 of the refugee convention. I entirely appreciate that he does not accept my interpretation; and I do not accept his. That is where we are. It is not a rigmarole. This is a matter of position and legal analysis, and I am afraid that this is the Government’s position.
Lord Murray of Blidworth (Con)
I believe I have answered both the noble Lord’s questions.
Lord Hannay of Chiswick (CB)
The second question was: could the Minister please tell us that the phrase that he used, which was that nothing in this Bill “requires” the Government to take action contrary to our international obligations, does not obviate the fact that the Bill enables the Government so to do if they so wish and without any further recourse to Parliament?
Lord Murray of Blidworth (Con)
That is consistent with the normal practice in statute.
Lord Hope of Craighead (CB)
My Lords, perhaps I might come back to the question asked by the noble and learned Baroness, Lady Butler-Sloss. I think the Minister said that he would write to her with examples of strained interpretation. I sat for many years on the Appellate Committee in the Supreme Court dealing with cases under the Human Rights Act, and I am not aware of any particular case where I was straining the language. I do not think I went very far beyond the ordinary meaning of the words.
I remember we were faced with a very difficult case involving two men who wanted to marry. In those days, the Marriage Act was very specific that marriage was between a man and a woman. We could have strained the language, but we did not do that; we said the provision was incompatible, which I think the Minister would recognise as a perfectly orthodox way to proceed. I think we were quite careful not to stray beyond the bounds of reasonable interpretation. I would be very interested to know whether he has examples of where we really did go beyond the bounds of reasonable interpretation.
Lord Murray of Blidworth (Con)
As I said, I will be writing to the noble and learned Baroness, but the House will recall that the noble Lord, Lord Wolfson, set out various examples, including Ullah and Al-Skeini, and there are others. This has been a matter of jurisprudential development since the commencement of the Human Rights Act. It is a well-known evolution in interpretive principle, and it is that which is addressed by the provisions in this Bill.
Lord Paddick (LD)
Following-up on my question about impact assessment, the Minister says that the Government do not recognise the impact assessments provided by NGOs, but why not? How can they say that they do not recognise the impact assessments provided by NGOs when they do not have their own impact assessment with which to contradict them?
The Minister also talked about the cost of not enacting this legislation, in terms of the current cost of what I think he called the “broken asylum system”—of a Government who have been in power for 13 years. To what extent is the high cost of accommodating asylum seekers in the UK down to the fact that there is a huge backlog of applications that have not been processed by the Home Office, when some 15 years ago there were almost double the number of applications and hardly any backlog?
Lord Murray of Blidworth (Con)
The Government do not recognise the figures in the purported impact assessments provided by the bodies that were referred to, such as the Refugee Council, because we do not recognise the assumptions and costs referenced in them. Furthermore, those documents do not acknowledge any assessment of the impact of the effect of not proceeding with the measures in the Bill.
Lord German (LD)
What is the Minister’s definition of “soon”, which he said was when we would receive the impact assessment? Will it be before the end of Committee, before the start of Report or after Report and before Third Reading? Perhaps he could be more explicit.
Lord Murray of Blidworth (Con)
The impact assessment will be provided when the decision is taken that it is appropriate to disclose it.
Lord German (LD)
Does the Minister therefore think that it is appropriate that the body which is deciding about this Bill—Parliament—should receive the impact assessment, and should that impact assessment be with us before we complete Committee on the Bill? Surely that is appropriate. It is not for the Government to decide. It is for the Government to make their case to Parliament. If they cannot do so, because they have not got the document, because the document is not sufficiently robust or because it is not available, then the Minister should be able to tell us that right now, so that we know the basis on which we are judging this Bill.
Lord Murray of Blidworth (Con)
I am afraid that I can tell the noble Lord only that it will be published in due course and that this is entirely normal.
Lord Coaker (Lab)
Frankly, this is unacceptable. Without being rude, I say that the Committee must at some point have the impact assessment. How on earth can we make many of the judgments on amendments and on the various things that we may wish to come forward with on Report if we do not have an impact assessment? It is normal practice for an impact assessment to be provided so that proper decisions can be made. Can the Minister at least go back to the department and say that this Chamber—I think I speak for everyone —is very unhappy that no impact assessment is due, and that we need one? Will he ask his department to provide one for us—at least well before Report?
Baroness Lister of Burtersett (Lab)
To add to that, we should have had a child rights impact assessment. That is supposed to be done right at the outset of the policy discussion. Therefore, it would have been appropriate for it to have been published at the same time as the Bill.
Lord Murray of Blidworth (Con)
The House knows my position. I have obviously heard what the noble Lord, Lord Coaker, and the noble Baroness, Lady Lister, have said, and I will of course take those points back to the department.
Lord Murray of Blidworth (Con)
My Lords, as the noble Baroness, Lady Lister, said, echoed by the noble Baroness, Lady Bennett, Clause 2 is the centrepiece of the scheme provided for in the Bill. At its heart, the Bill seeks to change the existing legal framework so that those who arrive in the UK illegally can be detained and then promptly removed, either to their home country or to a safe third country.
Clause 2 seeks to achieve this by placing a legal duty on the Secretary of State to remove those who come to the UK illegally. The duty applies where an individual meets the four conditions set out in Clause 2, which I will briefly rehearse.
The first condition is about the lawfulness of the person’s entry into the UK. This underlines the Government’s commitment to take all possible measures to stop people making dangerous journeys to enter the UK illegally, particularly across the English Channel.
The second condition is that the individual must have entered the UK on or after 7 March—the day of the Bill’s introduction in the House of Commons, as my noble friend Lady Lawlor noted. This is a crucial condition that will ensure that we do not create a perverse incentive for migrants to take illegal and dangerous journeys in an attempt to avoid being subject to the Bill’s provisions. I will return to this point in a moment.
The third condition states that the duty will apply to an individual who has not come directly from a country in which their life and liberty were threatened. That means that anyone entering the UK from another country where their life was not in danger will fall within the scope of the duty. This is consistent with our obligations under the refugee convention and upholds the principle that asylum seekers should claim asylum in the first safe country they reach. There is manifestly no need for people to make those dangerous journeys when they are already in a country where they are safe or could, in the case of France, for example, claim asylum. It places themselves and others at risk and puts money into the hands of organised criminals.
The fourth and final condition is that an individual requires leave to remain but does not have it. The duty to make arrangements for removal is subject only to very limited exceptions signposted in Clause 2(11), which we will come on to at a later date when we come to a later clause.
The fundamental point is that, subject to these limited exceptions, the Home Secretary will be under a clear and unambiguous legal duty to make arrangements for the removal of persons from the UK who satisfy those four conditions. She should not be deflected from fulfilling that legal duty. These provisions make it very clear that if you meet these four conditions you will not be able to make a new life in the UK.
A number of the amendments in this group relate to the four conditions I have described. Amendment 6 tabled by the noble Lord, Lord Carlile, relates to the second condition. In effect, this and other amendments tabled by the noble Lord seek to do away with the backdating of the duty to remove so that it applies only to those who illegally enter the country from the date of commencement rather than from 7 March. Amendment 39 in the name of the noble and learned Lord, Lord Hope of Craighead, deals with the same point.
The explanatory note to the noble and learned Lord’s Amendment 39 sums up the position well, as was noted by the noble Lord, Lord Kerr. It says:
“This amendment seeks to give effect to the principle that, unless for good reason, legislation should operate prospectively and not retrospectively”.
I was challenged by the noble and learned Lord to explain what that good reason was. The Government entirely agree with the explanatory note from the noble and learned Lord, Lord Hope. The Committee will know that it is not uncommon in exceptional circumstances for legislation to have retrospective effect, as the noble Baroness, Lady Chakrabarti, noted. But as the noble and learned Lord has acknowledged, there must be good reason for such exceptions. I suggest to the Committee that there is good reason in this instance for retrospection.
I would say that the retrospective nature of these provisions is critical. Without it, we risk organised criminals and people smugglers seeking to exploit this with an increase in the number of illegal arrivals ahead of commencement of the provisions in the Bill. This would likely lead to an increase in these unnecessary and dangerous small boat crossings and could even place more pressure on not only our asylum system, but our health, housing, educational and welfare services, not to mention our services for saving lives at sea.
Lord Paddick (LD)
Can the Minister explain why in that case the Nationality and Borders Act does not have a retrospective clause? What evidence does the Minister have, having announced the retrospective elements and that the provisions apply from when the Bill was first introduced into the House of Commons? What deterrent effect have we seen in terms of reducing the number of boat crossings?
Lord Murray of Blidworth (Con)
Certainly. The structure of the Nationality and Borders Act 2022 was very different. It was not a Bill like this one, which focuses on a duty to remove and is targeted at creating a disincentive effect on people crossing the channel. This is a very differently structured piece of legislation and therefore the retrospective element is a vital and logical part of the scheme in the Bill.
As to the evidence of the deterrent effect taking effect from the date of introduction, this is seen potentially in the fact that—and one can only draw inferences from the figures—it would appear that the numbers are down on this time last year. I accept that the weather has facilitated a good measure of that, but it is certainly right to say that had there not been a retrospectivity measure in the Bill I would conjecture that the numbers crossing the channel would have been far higher. It would have been easy for people smugglers to advertise their services—and I will come to this in a moment—as something of a fire sale, saying, “Get across the channel now. Here’s your opportunity before these measures in the Government’s new scheme take effect”.
The provision in the Bill does not mean that all those who enter the country illegally on or after 7 March will be subject to the duty to remove in Clause 2(1). We have expressly provided in Clause 4(7) that asylum and human rights-based claims made on or after 7 March may be decided by the Secretary of State prior to the commencement of Clause 4. Where a person is then granted leave to remain, they will not be removed.
The noble Lord, Lord Carlile, noted that retrospectivity is problematic because it impinges on legal certainty. The key here is that we have been clear in the Bill and in the public messaging—for example, in the statement given by my right honourable friend the Prime Minister and the other messaging—that this is the date when the scheme will commence. That means that there can be no uncertainty about the Government’s intention. While I accept that this is unusual in our legal system, it is not unheard of. The Revenue sometimes announces intended changes to tax law which are then later introduced by Finance Bills but backdated to the date of the announcement. In those cases, it is usually to prevent a closing-down sale of improper tax structures. There, retrospectivity is designed to protect tax revenue. Here, it is to prevent a closing-down sale of dangerous, sometimes fatal, channel crossings in the lead-up to some prospective date. We do not take this step lightly but feel it is necessary to reduce this perverse incentive.
I say “reduce” advisedly. The noble and learned Lord, Lord Etherton, has pointed out that migrants on the other side of the channel may not be as well advised as some taxpayers, but it is clear they are alive to changes in policy in the UK. For example, it is clear that announcements of a change in the approach to Albanian illegal migrants has led to a very significant dropping off of that cohort in the small boats, even before removals have begun at scale. This shows that the criminal gangs and migrants are aware of policy announcements in the UK, as my noble friend Lady Lawlor has pointed out. Similarly, the original announcement of the Rwanda scheme was known in the camps in Calais, with some suggesting in reporting that asylum seekers sought to go to the Republic of Ireland instead to avoid being sent to Rwanda. Indeed, the then Taoiseach Michael Martin noted a surge in applications and partly blamed the Rwanda announcement.
While clearly announcing the start date of the new scheme may not have had a decisive impact, it is important to do everything we can to discourage those dangerous journeys. Announcements such as this can have an impact on behaviour, and we hope they will reduce the incentive for a surge in dangerous crossings, perhaps at a time when the weather makes crossing very dangerous. To answer the question asked by the noble Lord, Lord Carlile, these are the compelling and exceptional circumstances that justify this decision.
Baroness Chakrabarti (Lab)
I apologise to the Minister for intervening at this late hour. If I understand him correctly, it will now be permissible to legislate retrospectively in any case of criminality because, by definition, it is very important not to have a fire sale. If we believe that certain conduct is wrong and there is a gap, whatever that conduct is, and if it is a serious enough matter to legislate in criminal terms, for example, it would now and in the future be permissible to legislate retrospectively.
My second point is that the Minister seems to suggest, like his noble friend Lady Lawlor, that because Ministers have announced a prospective change in the law, that should be good enough, because presumably we now believe that executive fiat and ministerial announcements and pronouncements are enough to suggest to people, not just in our own country but across the world, that that is what the law is and will be and always was. Have I understood the Minister correctly on this point?
Lord Murray of Blidworth (Con)
No, I am sorry to say. Clearly the position is not that in every case where there is a change in the criminal law it should have retrospective effect to the date of the Bill’s introduction. That is absolutely not what I am saying. What I am saying is that, in this context, to prevent a rush of people into these dangerous vessels, crossing the channel at a time when there is potentially bad weather, those were the special circumstances that justified retrospection in these provisions. To go back to one of the last major Bills to go through your Lordships’ House, which became the Public Order Act, I would not dream of suggesting that the offence of locking on should have had retrospective effect to the date of the introduction of the Bill; there would have been no exceptional circumstances for that.
While I am on the topic of the speech just given by the noble Baroness, Lady Chakrabarti, I would like to address her suggestion that limited retrospectivity will lead to refoulement. This is clearly not the case. I can do no more than repeat that this Bill does not allow refoulement. It does not allow the Government to remove individuals to places where they will be in danger—and that, quite rightly, is under the supervision of the courts.
In particular, I would refer noble Lords to the clauses in the Bill relating to suspensive claims—Clauses 37 to 50—which allow Upper Tribunal judges to determine whether an individual faces a risk of “serious and irreversible harm”. If such a case is made out, the individual will not be removed to that place.
Amendment 7 tabled by the noble Lord, Lord German, relates to the third condition and to the issue of whether a person has or has not “come directly” from a country where their life and liberty were threatened. It is right that we prioritise protection for the most vulnerable people arriving through safe and legal routes rather than those who are strong or rich enough to have journeyed through safe countries and paid the people smugglers before they reach the UK.
In answer to the question put by the noble Lord, Lord German, repeated by the noble Lord, Lord Coaker, people seeking sanctuary should apply for asylum in the first safe country they reach. There is no uniform international interpretation of the many concepts of the refugee convention. However, the Vienna Convention on the Law of Treaties provides the treaty to be interpreted “in good faith”. It is on this basis that we have set out our interpretation of “come directly” through Clause 2. I might add that, were Amendment 7—
Baroness Lister of Burtersett (Lab)
The Minister is beginning to address the question that I have raised twice: why should we accept this Government’s interpretation of the refugee convention over and above that of the body that is given authority by the UN to interpret it for the international community? Every other organisation that has briefed us has followed the UNHCR in its interpretation and there are very real fears of refoulement. As a noble Lord opposite said earlier. the reason given seems to be “Because we say so”, as you would say to a child. That is not good enough. We want to know exactly why we should accept the Government’s interpretation.
Lord Murray of Blidworth (Con)
I thank the noble Baroness for that intervention. The reality is that the Government take legal advice. The UNHCR is clearly a UN body; it is not charged with the interpretation of the refugee convention. Some parts of the UNHCR have views on the Government’s position, but it is always worth recalling that the UNHCR itself maintains refugee arrangements and accommodation in Rwanda. In December, the High Court considered the submissions from the UNHCR and discounted what was said. So I invite the noble Baroness, rather than simply taking the Government’s word for it, to review the judgment of the Divisional Court, a careful and considered judgment, which considered the legality of the removal scheme.
Lord Hannay of Chiswick (CB)
The Minister has latched on to the wrong point—not the point that the UNHCR has made again and again that it is not compatible with the obligations of our membership to refuse to consider a request for asylum. It is nothing to do with Rwanda; it is to do with refusing a request for asylum. The Minister admitted earlier that there is no explicit provision in the refugee convention that permits us to do that. That is the basis of the UNHCR’s position. Frankly, his suggestion that there are differences of opinion in the UNHCR is pretty contemptible. The High Commissioner for Refugees has said he does not think this is compatible.
Lord Murray of Blidworth (Con)
I am afraid that I again find myself at odds with the noble Lord. The reality is that the UN itself relocates refugees to Rwanda. As I say, there is no suggestion that people’s asylum claims will not be dealt with under this scheme; their asylum claim will be dealt with in Rwanda once they are removed, and that is entirely compatible with the convention. There is no requirement on a member state of the convention to determine asylum claims within its own territory. That is abundantly plain.
Lord Kerr of Kinlochard (CB)
The Minister says there is no requirement in the convention for a convention state to handle an asylum request on its own territory, but surely the deal with Rwanda rules out our ever hearing these cases. In Rwanda, people are allowed to apply for asylum in Rwanda, but their case for asylum in the United Kingdom will never be admitted. Is that not correct?
Lord Murray of Blidworth (Con)
That is entirely correct, yes. Their asylum claim will be determined by the Government of Rwanda. That is the system that the High Court found to be entirely lawful in December.
If Amendment 7 were agreed, removing the third condition, the duty to remove would also apply to those who had come directly from a country where their life and liberty were threatened, and I am sure that is not what the noble Lord would want.
Amendment 8 in the name of the noble Lord, Lord Cashman, also relates to the third condition. I put it to the noble Lord that the wording in Clause 2(4), referring to threats by reason of a person’s race, religion, nationality, membership of a particular social group or political opinion, reflects the definition of a refugee in Article 1 of the refugee convention. We have heard a lot today about adherence to the refugee convention and other international treaties. There may be a case for amending the definitions in the convention to reflect the world of today rather than what it was in 1951, but we should not put the cart before the horse and insert wording in the Bill at odds with the current wording of the convention.
I add that the reference to membership of a particular social group may, on the facts of a particular case, cover a person fleeing persecution on the basis of their gender, sexual orientation or gender identity. Lastly, it is not right to suggest, as the noble Lord does, that the Bill removes individualised assessments. It does not. Officials will make assessments and those can be challenged, including by way of suspensive claims, as we have already discussed.
Amendment 9 tabled by the noble Baroness, Lady Hamwee, would remove subsection (7). This ties in with the fourth condition, which is that a person requires leave to enter or remain in the UK but does not have it. We will have a fuller debate about unaccompanied children later in Committee, but subsection (7) recognises that the duty to remove does not apply to unaccompanied children, and where they are not to be removed under the power conferred in Clause 3, the expectation is that they will normally be provided with temporary permission to remain in the UK until they are 18 years old under provisions to be made in the Immigration Rules. If subsection (7) is removed from Clause 2, an unaccompanied child given this temporary permission to remain would not then satisfy the fourth condition, thereby undermining our approach to unaccompanied children. As I say, we will have a fuller debate on this issue when we get to Clause 3, which feels like some time away.
The noble Baroness, Lady Hamwee, also has Amendment 10, requiring the Home Secretary to inform people when it has been decided that the duty to remove applies to them. Such information would include providing details of any evidence relied upon to make that decision. We have already provided, in Clause 7(2), for a person to be issued with a removal notice detailing, among other things, their right to make a suspensive claim. It is implicit in these provisions that the issue of a removal notice follows a determination that the person satisfies the four conditions in Clause 2. The four conditions relate to issues of fact. A person in receipt of a removal notice will themselves know, or ought to know, whether the conditions apply. If they have compelling evidence that the Home Secretary has made a mistake of fact, they can submit a factual suspensive claim to challenge the removal notice. We will return to those provisions, too, in due course in Committee.
Amendment 11 was spoken to by the noble Lord, Lord Coaker, and others. As we will come on to in later clauses, we have made particular provision for potential victims of modern slavery who are co-operating with law enforcement agencies, and it is necessary for them to remain in the UK in furtherance of such co-operation. In later debates, we will address the wider issue of the progress being made by the NCA and others in tackling the criminal gangs that are not perpetuating human trafficking but are engaged in people smuggling. It is worth also noting, in response to the noble and learned Baroness, Lady Butler-Sloss, that if an individual who had been trafficked came forward, they would be sent only somewhere where they would be safe—whether their own home country, if it was safe, or a safe third country. In all cases, they would no longer be in the control of their trafficker.
A key purpose of the Bill is to break the business model of the people smugglers. That will not happen if we undermine the central tenet of the Bill: that if you come here illegally you cannot stay, and instead you will be liable to detention and promptly removed. If we build exceptions and loopholes into the fabric of the Bill, it will be undermined and will not work. If those coming over on small boats have information that will assist in the investigation of people-smuggling offences, they can provide it, but this cannot be a reason to delay removal. Any co-operation with law enforcement agencies can, if appropriate, continue from abroad. If the experience of the pandemic has taught us anything, it is that a lot can be achieved remotely. Indeed, our domestic courts and law enforcement are well used to this by now.
Finally, Amendment 12 in the name of the noble Baroness, Lady Ritchie of Downpatrick, deals with the issue of entry into the United Kingdom over the Irish land border. We discussed this at length during the dinner break business yesterday in relation to the recent SI on electronic travel authorisation. I note that this is a probing amendment relating to the concerns that have been raised regarding tourists and other people who inadvertently arrive in the UK from the Republic of Ireland via the land border with Northern Ireland. As is currently the case, tourists from countries requiring visas to come to the UK as visitors should obtain these before they travel. That is as it should be. That said, I recognise the issue she has raised and accept that some individuals may, entirely unwittingly, enter the UK without leave via the Irish land border, as I said yesterday.
We are examining this issue further. I would point the noble Baroness to the regulation-making power in Clause 3, which will enable us to provide for exceptions to the duty to remove where it would be appropriate to do so.
The noble Baroness, Lady Finlay, asked me about the status of a child born in the UK to a woman who meets the conditions in Clause 2. The short answer is that the child will not satisfy the conditions in Clause 2, but I will write to her with a more detailed explanation.
The noble Baroness, Lady Ludford, asked about compatibility with article 2 of the Windsor Framework. There is a later amendment to which she has added her name, Amendment 137, on this very issue. We will come on to that later in the Committee.
As I indicated at the start, this clause provides the foundations for the Bill as a whole. It is fundamental to the effective operation of the scheme and my fear is that the amendments put forward would serve only to weaken the effectiveness of the scheme. On that basis, I invite the noble Lord, Lord Carlile, to withdraw his amendment.
Baroness Butler-Sloss (CB)
My Lords, there was an issue about adoption of a child who came to this country, or came in the womb of somebody arriving in the country, into a British family. Are they at danger under the Bill?
Lord Murray of Blidworth (Con)
Forgive me: as I thought I said, the status of a child born in the UK to a woman who meets the conditions in Clause 2 is that they would not satisfy the conditions in that clause. I realise that there were a number of hypotheticals in the way that that question was written. If I may, I would like to go away and think about them. I will reply by letter in due course, and obviously publicise that letter.
Baroness Ludford (LD)
The Minister talked about an amendment that I had co-signed. Was it Amendment 132?
Baroness Bennett of Manor Castle (GP)
The Minister, not to my surprise, did not address my question about what happens after the election. I will phrase the question another way. In your Lordships’ House, we often ask about “must” and “may” provisions. Rather than a duty to remove, surely the Government could make it that the Secretary of State “may” remove. That would allow this Government to act as they wish but would not attempt to tie the hands of any future Government.
Lord Murray of Blidworth (Con)
I am afraid the structure of the Bill is that it creates a duty on the Secretary of State. That is in order to send the deterrence message that entering the country illegally is unacceptable and to reduce the number of people crossing the channel. I am afraid to say that it is a logical step that if the Government were to change, then it would be open to that other Government to pass legislation of their own. That is democracy.
Baroness Chakrabarti (Lab)
I am very grateful to the Minister for his patience, but it is not quite right that that is the reason for the “must”, is it? It is not to send a signal to all those people overseas who are reading our draft legislation; it is to give a direction to our courts. The Home Secretary is choosing to tie her own hands. It is really in order to oust the jurisdiction of the courts and their ability to say that where the Secretary of State has a choice, they should exercise that choice in compliance with international law.
Lord Murray of Blidworth (Con)
Clearly, the intent is to send a message—that people really must not make these dangerous journeys across the channel. As I say, all the avenues of legal challenge are open but there are only two categories that will suspend removal. There are a number of provisions—I am sure the noble Baroness and I will be debating them at length over the coming days in Committee—and that is how the Bill will have its effect.
Baroness Lister of Burtersett (Lab)
Could I ask that the Minister copies everyone who took part in this debate into the letter he is going to send, because it is of interest to many of us?
Lord Murray of Blidworth (Con)
I will certainly place a copy in the Library of the House. I hope that suffices. I am sure that my private office can work out who is here and is participating.
Lord Carlile of Berriew (CB)
Before the noble Lord stands up again, I feel I should bring this debate to a close. I am grateful to all noble Lords who have spoken in this debate, particularly those who supported the amendments in my name. A number of other very interesting issues have been raised. I have no doubt that we will be returning to a number of them on Report; I certainly will.
The reasons given by the Minister for what he recognises is the exceptional course of retrospectivity—I am using his words—involved conjecture: a conjecture that a very small change in the numbers, for whatever reason, of people coming on boats shows that the retrospectivity is working. I have been a Silk for 39 years. Along with the noble Lord, Lord Paddick, we have probably met more criminals than the rest of this Committee added together. My observation would be a rather less naive one than that made by the Minister. Criminals are infinitely adaptable. If the Government think that the boats are being stopped, it is not evidence that fewer people are coming into this country, because there are different ways and means of doing it.
From what we have heard today—maybe on Report we will hear something different—I really believe that the case for exceptionality is far from proved. I take the view, therefore, that we will have to come back to these subjects. I urge the Government to meet noble Lords who have spoken in these debates before Report so that we can see whether there is some common ground we can find that will make this a better Bill rather than a battleground in your Lordships’ House. For the time being, I beg leave to withdraw Amendment 6.
Illegal Migration Bill
Lord Murray of Blidworth ExcerptsWednesday 24th May 2023
(12 months ago)
Lords ChamberRead Full debate Illegal Migration Act 2023 View all Illegal Migration Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 133-I(b) Amendments for Committee (Supplementary to the Marshalled List) - (24 May 2023)
The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)
My Lords, we have had a very interesting, long and good debate, which has had perhaps more than a hint of a Second Reading debate—but, of course, that is unsurprising, given that Clause 1 sets out the purpose of the Bill. We will of course be able to revisit this debate in the second group when we have the “clause stand part” Question.
We have heard thoughtful speeches from many noble Lords, but I particularly valued the insights from the noble Baroness, Lady Fox, my noble friends Lord Hodgson, Lord Horam, Lord Sandhurst and Lady Lawlor, and my noble and learned friend Lord Wolfson.
For now, let me respond to the amendments directly. First, Amendments 1 and 5, tabled by the noble and learned Lord, Lord Hope of Craighead, seek to add into the Bill definitions of “illegal migration” and “unlawful migration”. The noble and learned Lord has suggested that this would be helpful in the interests of legal certainty. As a lawyer myself, I am all in favour of legal certainty but, in this instance, I am not persuaded that adding these definitions helps in this regard.
It is important to incorporate Bill-wide definitions in a Bill where terms are used across the Bill. We have done that in this Bill and, as noble Lords will have noticed, Clause 64 includes an index of defined expressions. But I put it to the noble and learned Lord that nothing hangs off the terms “unlawful migration” or “illegal migration” and, consequently, there is no need to define them. The term “unlawful migration” is used only once in the Bill, in Clause 1(1), while the term “illegal migration” is used only in the Short Title, as the noble Baroness, Lady Chakrabarti, observed. Moreover, it is clear from Clause 2 that the duty to make arrangements for removal applies to persons who meet the four conditions in that clause. It does not apply to other persons who may be in the country unlawfully—for example, because they have overstayed their limited leave to enter or remain. In short, the Bill is clear without these two terms being defined.
As regards the early intervention in the debate from the noble Baroness, Lady Meacher, a point repeated by both the noble Baronesses, Lady Chakrabarti and Lady Hamwee, as well as my noble friend Lord Kirkhope and the right reverend Prelate the Bishop of Chelmsford, I remind your Lordships that the Immigration Act 1971 was recently amended by the Nationality and Borders Act 2022 with regard to the criminal offences relating to illegal entry and arrival. This includes people who enter the UK without leave or arrive in the UK without permission: for example, without a visa where that is required under the Immigration Rules. This means that such persons are illegal migrants whether or not they go on to claim asylum. This, if I may say, answers the question from the noble Baroness, Lady Hamwee, of what makes a route illegal. The answer is: legislation, passed in the normal way, and scrutinised and passed by this House.
The suggestion by the noble Baroness, Lady Chakrabarti, that anyone making claims under the refugee convention can never be illegal, represents, with respect, a muddled reading of the convention. The convention is clear that states can still operate controls on illegal migration and, under Article 31, it is expressly permitted to disadvantage those who have arrived illegally from safe countries—which is true of all who come from France. This embodies the first safe country principle in the sense that Article 31 protections apply only to those who have come directly from unsafe countries—a point made by my noble friend Lady Lawlor.
The first safe country principle is also widely recognised internationally, including in the Common European Asylum System, a framework of rules and procedures operated by EU countries together, based on the refugee convention. I would add that the noble Baroness, Lady Chakrabarti, may have overlooked the fact that, under Clause 2(4) of this Bill, the “duty to remove” does not apply to those who have come directly from unsafe countries, in line with the refugee convention.
The refugee convention seems to be raised to support statements that are not all borne out by its terms. We must interpret the convention as it is written, not as others would wish it to be written.
Lord Hannay of Chiswick (CB)
I thank the Minister for giving way. I merely want to ask whether you are recommending that all of the 46,000 who arrived last year should be sent back to France. If so, has the Prime Minister had any discussions with President Macron about that?
Lord Murray of Blidworth (Con)
As the noble Lord knows, the Prime Minister and President Macron have had regular discussions and there have been regular treaties and agreements in relation to the enhancement of police powers in France, but it is not presently the position of the French Government that they are willing to accept the return of those who have entered the UK illegally. That is what drives the Government to look for other avenues to dissuade people from embarking on the dangerous journey across the channel.
Turning to Amendment 2, tabled—
Baroness Ludford (LD)
I am sorry to intervene on the Minister, but I wonder if he could direct my attention to where in Article 31 of the refugee convention it refers to “illegal migrants”. I can find a reference only to “illegal entry or presence” or “entry or presence without authorisation”. It is the entry or the presence that is illegal or unauthorised; it is not the person. That is the problem that many of us have with the term “illegal migrant”. I cannot find it in Article 31 of the refugee convention; perhaps I have not looked hard enough.
Lord Murray of Blidworth (Con)
I am very grateful to the noble Baroness. I was indeed about to mention her in my next sentence. Let me address that point and repeat what I said earlier. The phrase “illegal migration” in the Short Title of the Bill refers to the fact that the act of entering otherwise than in accordance with immigration controls was criminalised by an Act passed by this House and the other place in 2022. That is why it is correct to describe such people as “illegal migrants”—because they did not enter in accordance with immigration controls. That is the long and the short of it. The interpretation of Article 31 is irrelevant as regards that point of certainty.
I turn now to Amendment 2, tabled by the noble Baroness, Lady Ludford. This amendment seeks to strike out subsection (5), which disapplies Section 3 of the Human Rights Act 1998. The disapplication of Section 3 will ensure that the Bill’s provisions will be interpreted to meet the legislative intent of Parliament, rather than the strained interpretations imposed by the courts to achieve compatibility with convention rights. As my noble and learned friend Lord Wolfson, King’s Counsel, pointed out, Section 3 is an unusual provision in UK law and there is, in principle, no reason why it cannot be excluded in cases like this.
It is our view that Parliament and the Government are better suited to address the sensitive policy issues involved in this legislation. It is therefore only right that Section 3, which requires the court to interpret the provisions to achieve compatibility with convention rights, must be disapplied so that courts interpret the law in accordance with the purpose of the Bill. Through this, we are ensuring that the balance between our domestic institutions is right and that Parliament’s intent is clear to the courts.
As the noble and learned Lord, Lord Hope, explained, Amendment 3 flows from the recent report of the Constitution Committee. I am very grateful to that committee for its scrutiny of the Bill. We are studying its report carefully and will respond in full ahead of Report. As for the genesis of the amendment, the noble and learned Lord explained that the Constitution Committee considered that more explanation was needed around the Section 19(1)(b) statement that I made on the introduction of the Bill in this House.
Notwithstanding that the noble Lord, Lord Kerr, quoted from my Second Reading speech on this issue, I reiterate the point I made at that stage: a Section 19(1)(b) statement means not that the provisions of the Bill are incompatible with the convention rights, only that we cannot be certain that they are compatible. The assertion suggested by the noble Lord, Lord Coaker, in his speech a moment ago, that the statement amounts to a concession that measures in the Bill are incompatible, is not the case. The purpose of Section 19, as my noble friend Lord Wolfson set out, is that it is a statement that the provisions of the Bill are incompatible with convention rights and we cannot be certain that they are compatible. It is of course a measure in a piece of legislation passed by the last Labour Government and therefore something that the noble Lord, Lord Coaker, would no doubt place great weight on. Those are the terms that we find in Section 19 of the Human Rights Act.
Lord Carlile of Berriew (CB)
Does the Minister not think that it might at least be a courtesy to the Committee to set out which of the provisions, in his view and that of the Home Secretary, are or are not compatible with the convention? That would help us to determine the quality of the legislation that is proposed.
Lord Murray of Blidworth (Con)
I will come to address the issues of the broad applicability of the Section 19(1)(b) statement. There is no requirement in the Act for a statement to identify any particular section. Indeed, I do not want to wade into the waters that were nearly ventured into during the interventions on my noble friend Lord Wolfson’s speech about whether the Section 19(1)(b) statement in relation to the Communications Bill, as it then was, was in accordance with the statute.
In any event, I return to the principle of Section 19(1)(b) statements. It is right to say that they have been made by Governments of all stripes, not least in the Communications Bill, as we heard earlier in the debate, but also by the coalition Government and by Nick Clegg in the House of Lords Reform Bill 2012. As my noble friend Lord Wolfson rightly indicated, issuing a Section 19(1)(b) statement is a legitimate choice given to Ministers under the Human Rights Act. Why else would the Act provide for such a course?
As I have said, previous Governments have issued such statements, and clearly that has not caused our international reputation to collapse. More broadly, I encourage the Committee to approach questions of international reputation with a proper perspective. The world can be in no doubt that we are defenders of rights and liberty, the most obvious example being our leading support for Ukraine.
Requiring guidance to be approved by Parliament on how the Bill’s provisions are to be interpreted within the meaning of the Human Rights Act is unnecessary. On 7 March the Government published a memorandum addressing issues arising under the ECHR, and a supplementary memorandum was published in April in relation to the government amendments tabled for Report in the Commons. These memoranda set out a provision-by-provision ECHR analysis, so I submit that the Government’s position is clear, and the noble Lord, Lord Carlile, will find the answers to his questions about what sits behind the Section 19(1)(b) statement in those memoranda.
It will undoubtedly be necessary to provide Home Office staff, immigration officers and others with appropriate guidance to support the implementation of the Bill. It would not be appropriate for such routine operational guidance on the implementation of a particular Act to be subject to parliamentary approval.
Lord Lamont of Lerwick (Con)
When my noble friend was replying to the noble Lord, Lord Carlile, he said that the ECHR memorandum set out precisely which articles of the convention had that effect and which clauses in the Bill were compatible or not, and, as he says, different rights are listed. But what is the status of that definitive document? He says it is the answer to the noble Lord’s question, but what is its status? Presumably it does not have legal effect in itself.
Lord Murray of Blidworth (Con)
That is correct: the ECHR memorandum is one of the documents prepared to support the Bill in its passage through Parliament. Obviously, if a matter of interpretation were required, it is the sort of material that those looking for an interpretation might be minded to refer to. Indeed, it is open to those in Parliament to refer to such documents. It is, of course, right to say that the ECHR memorandum is a standard part of the package in relation to public Bills—so, in that sense, it has regular status.
Viscount Hailsham (Con)
Before the Minister leaves this part of his address, will he tell the House whether it is the intention of the Government that the implementation of the Act should be compliant with all the conventions that are set out in Amendment 4? Do the Government intend to comply with those conventions? This House is entitled to know.
Lord Murray of Blidworth (Con)
As I have already outlined, it is clear that there is nothing in the Bill that would require the UK to breach its international obligations. The UK takes compliance with those obligations very seriously. As for the other international instruments referred to in these amendments, they have not, by and large, been incorporated into UK domestic law, and we should not seek to do so in this Bill through the back door.
Lord Hannay of Chiswick (CB)
The Minister seems to be placing a great deal of weight on there being nothing in this Bill that requires the Government to take action contrary to our international obligations. He would surely agree, however, that there is a great deal in this Bill that enables the Government to take action that would be contrary to our international obligations—and that without any recourse to Parliament.
Lord Murray of Blidworth (Con)
I am not sure that I agree with the noble Lord. There is no requirement that powers should conceivably be expressed on the face of every Bill in such a way that they are trammelled by international obligations. That would be contrary to the dualist system, as my noble and learned friend Lord Wolfson made abundantly clear. I am reluctant to reopen that particular exchange at this juncture, given the time that we have remaining prior to the dinner break.
States take different approaches to their international law obligations. Some states treat international law as part of their domestic law, but the UK, like other countries with similar constitutional arrangements, including many Commonwealth countries, has the dualist approach that we have discussed before. In those states, international law is treated as separate from domestic law and international law is incorporated into domestic law only by decisions of Parliaments through legislation. That is a point we have already discussed. The effect of these amendments would be to make the provisions of all the listed international agreements effectively justiciable in the UK courts. It is legitimate for noble Lords to make the case for incorporation into domestic law of one or more of these international instruments, but that is not the Government’s position, and we should not be using this Bill to secure that outcome.
I hope that, in light of my explanation, the noble and learned Lord will be content to withdraw his Amendment 1.
Baroness Butler-Sloss (CB)
I wonder whether the Minister could help me. He said that the Government would apply—I gather—all the conventions that are in Amendment 4. May I suggest that it would be impossible for the Government to apply the United Nations Convention on the Rights of the Child? It is perfectly obvious that the best interests of a child throughout the Bill will not be recognised.
Lord Murray of Blidworth (Con)
Clearly, as I have already said, it is the Government’s view that nothing in the Bill requires the UK to breach its international obligations, whether in relation to the UN Convention on the Rights of the Child or any of the other listed international instruments. Of course, the United Kingdom takes compliance with its international obligations very seriously.
Lord Hope of Craighead (CB)
My Lords, I am very grateful to all noble Lords who have taken part in this very interesting and far-ranging debate. I am conscious of the time, and I am sure the Committee would not wish me to go over the ground in any detail, and I am not going to do that.
The Minister, with great respect, has not really answered many of the questions that have been raised. We will come back to this, I am sure, possibly in the next group, but certainly these questions will come back on Report and will need to be answered in much more detail. So far as my own amendments are concerned—the definition point—the Minister has pointed out that nothing hangs on these words because they do not reappear elsewhere in the Bill. I was well aware of that when I tabled the amendment, but that raises the question: why brand the actions of these people coming here as unlawful or illegal, unless, of course, they are in breach of specific legislation, which is not always the case? That illustrates the unfortunate wording of Clause 1, which we will come back to.
As far as Amendment 3 is concerned, which deals with the question of guidance, I do not think, with great respect, that the ECHR memoranda amount to the kind of guidance that is needed in a situation where access to the courts is being denied. Something more specific is needed, and that is what the amendment is driving at. Perhaps we will come back to that at some later stage. For the time being, I think the simplest thing I should do, so that we can move on, is beg leave to withdraw Amendment 1.
Immigration (Electronic Travel Authorisations) (Consequential Amendment) Regulations 2023
Lord Murray of Blidworth Excerpts(12 months ago)
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The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)
My Lords, I start by thanking the noble Baroness, Lady Ritchie, for securing this short but very interesting debate, and those who have spoken in it.
It almost goes without saying that the Government’s number one priority is to keep the UK safe. To strengthen our border security, we are therefore introducing our electronic travel authorisation—ETA—scheme. As the noble Lord, Lord Dodds, observed, this approach is in line with the approaches of many of our international partners, which have already taken a similar step. The USA, Canada, Australia and New Zealand have similar schemes and, as the noble Lord identified, the European Union—at least the Schengen area and some others—is preparing to introduce a comparable scheme, the European travel information and authorisation system, or ETIAS.
The UK’s ETA scheme will enhance the Government’s ability to prevent the travel of those who pose a risk to the UK. For the first time, ETAs will allow us to screen non-visa national visitors in advance of the border and stop those who pose a threat travelling to the UK. To answer one of the questions of the noble Lord, Lord Dodds, the UK’s ETA scheme will launch in October 2023. The scheme will be rolled out in a phased manner from October 2023 until the end of 2024. It is our present understanding that the EU system will launch in 2024, and indications in the European media suggest a date following the Paris Olympics. The UK’s ETA scheme will make the UK a safer place.
The Government have carefully considered the concerns about the application of the ETA scheme within the common travel area, which, as the noble Lord, Lord Ponsonby, and others said, has been raised in both Houses and by many stakeholders in Northern Ireland and elsewhere.
In response to concerns raised about the impact of ETAs on the residents of Ireland who frequently cross the Northern Ireland/Republic of Ireland border, the Government have agreed to exempt non-visa nationals who are legally resident in Ireland from the requirement to obtain an ETA when travelling to the UK on a journey within the common travel area. I reassure the noble Baroness, Lady Suttie, that this was done in full consultation with the Northern Ireland Office. Perhaps I should also clarify, for the benefit of the noble Lord, Lord Murphy, that it was never proposed that Irish citizens would be subject to the ETA system. They, of course, have a special status and always have done, and that is enshrined in primary legislation. The only question that arose was what one did with third-country non-visa nationals within the Republic, and, as I say, they have now been exempted.
In order to benefit from that exemption, those who are legally resident in Ireland may instead, if required by a UK immigration official, present physical evidence that demonstrates their legal residence in Ireland. The Home Office will publish guidance on acceptable evidence before the end of July. I know the noble Baroness was asking me questions about that in the Select Committee, and I am delighted to provide her with a firm date for the publication of that guidance.
The Government have carefully considered requests to exempt those tourists visiting Northern Ireland from the Republic of Ireland from the ETA requirement, due to concerns that the requirement to obtain an ETA will be considered a bureaucratic barrier for international visitors visiting Northern Ireland from Ireland. While the Government entirely recognise the intention behind that request, an exemption of that kind would undermine the Government’s efforts to strengthen border control and make the UK, and indeed the common travel area, safer.
ETAs will for the first time allow us to have a comprehensive understanding of those seeking to come to the UK via the common travel area and, as I have said, to refuse them permission as appropriate. Exempting tourists visiting Northern Ireland from Ireland from the requirement to obtain an ETA would result in an unacceptable gap in UK border security that would potentially allow persons of interest or risk, who would otherwise be refused an ETA, to enter the UK legally, undermining the very purpose of the ETA scheme, which is to prevent the travel of those who pose a threat to the UK. The Government are therefore clear that individuals arriving in the UK, including those visiting Northern Ireland from Ireland, will be required to obtain an ETA. As I say, that is to protect both the UK immigration system and the common travel area from abuse.
It is well established as a principle of the operation of the common travel area that all non-Irish, non-British citizens travelling in all directions within the common travel area must enter in line with the laws of those jurisdictions. We are simply extending the same principle to ETAs when they are introduced. After all, visa nationals—that is, those people travelling from countries that require a visa to come to the UK or to the Republic of Ireland—are expected to do that in any event when crossing the land border, and if they fail to do so they will be entering illegally. However, as now, there will continue to be no routine immigration controls within the common travel area—that is obviously an important principle within the Good Friday agreement, as the noble Lord, Lord Murphy, pointed out—and no immigration controls whatever are maintained on the Northern Ireland/Republic of Ireland land border.
I assure the House that the ETA application process has been designed to be as quick and easy as possible for applicants to complete. It cleverly utilises technology to minimise the need for manual data entry by applicants. As part of our development of the application process and wider preparations for the launch of the ETA scheme, the Home Office has undertaken extensive user research, and we will continue to build on that even after the scheme is launched. I am pleased to inform noble Lords that our user research to date has been overwhelmingly positive, with test users reporting that the application process was easy and straightforward. It has deliberately been designed to be completed in less than 10 minutes. From my own experience of testing the mobile application on a smartphone, I assure noble Lords that the process for obtaining an ETA will be neither bureaucratic nor burdensome. I was in fact able to complete the process in under five minutes.
Once granted, an ETA will be valid for two years or until the passport used to apply for that ETA expires, allowing the holder to make many repeat journeys to the whole of the UK. Our objective is that applicants will be granted an ETA on the same day as their application. I hope that addresses the point made in relation to ESTAs, the American equivalent, by the noble Lord, Lord Dodds. I can reassure the noble Baronesses, Lady Ritchie and Lady Wheatcroft, that same-day travel should still be an option for the majority of tourists crossing the Republic of Ireland/Northern Ireland land border, even if they have not obtained an ETA further in advance and decide to make a spontaneous visit to Northern Ireland.
I turn briefly to the question of the fee. The Home Office will charge a fee for an ETA application. The fee will be competitive and comparable to similar schemes in operation. For example, the USA charges $21, Australia charges 20 Australian dollars and New Zealand charges 17 New Zealand dollars, all for applications made on their mobile applications, and those charges are equivalent to between £10 and £17. We expect to be able to confirm the exact cost of our ETA shortly. I am sure noble Lords would agree that this is a very small cost for travellers relative to the cost and benefits of visiting the UK. I therefore suggest that it is unlikely to deter the majority of genuine tourists and visitors. That is certainly the experience of other countries that already operate similar schemes.
Finally, in response to the questions raised by the noble Lord, Lord Ponsonby, regarding the impact assessment, the precise impact of the introduction of ETAs is uncertain and depends on the potential behavioural impact on the individuals wishing to travel to the UK. When these countries introduced this system, none of them experienced a dip in tourism. It is worth noting that the impact assessment will estimate the potential impact of the ETA introduction at the agreed fee level and again, as I said in Grand Committee, that impact assessment will be published shortly.
I can reassure the noble Lords, Lord Murphy and Lord Dodds, that the Government remain committed to the Belfast/Good Friday agreement, and to ensuring that there is no hard border between Ireland and Northern Ireland. In line with our commitments under strand 2, the Government remain firmly committed to working with the Government of the Republic of Ireland and representatives of the tourism industry, north and south, to ensure that the ETA requirement is communicated effectively. We are committed to doing all we can to mitigate any risk of it being seen as an increased barrier to cross-border tourism on the island of Ireland. My officials are meeting with the Northern Ireland Tourism Alliance, Tourism Ireland and Tourism Northern Ireland in early June to explore how we can best work together to communicate the ETA requirement.
We have made it clear that prosecutions for illegal entry offences will focus on egregious cases and not accidental errors. We will examine very carefully the individual circumstances of each case before deciding whether they should be pursued to prosecution. Ultimately, the Public Prosecution Service for Northern Ireland will determine whether a prosecution is appropriate and in the public interest.
I hope, therefore, that noble Lords acknowledge that the Government have listened to and addressed the concerns raised in this House and in the other place, by providing an exemption for those who are legally resident in Ireland when travelling to the UK on a journey within the common travel area, and by ensuring that the process of obtaining an ETA is quick and simple for those who require one. We are committed to working with relevant stakeholders to ensure that the ETA requirement is communicated effectively, so that we improve the security of the UK and the common travel area without impeding legitimate travel.
Baroness Ritchie of Downpatrick (Lab)
My Lords, I thank all noble Lords who have contributed to and participated in this debate and thank the Minister for his response.
There remain some outstanding issues, notwithstanding the fact that officials from the Home Office will be meeting with the Northern Ireland Tourism Alliance, Tourism NI and Tourism Ireland, in early June, which I welcome. It would be useful if the Minister could provide me with an update on the outcome, because I am still concerned that there could be a considerable impact on tourism figures from the Republic of Ireland into Northern Ireland, since our local economy, in terms of jobs and the wider circular economy, depends on that. We are seeking a pragmatic solution to that issue if that is at all possible in terms of the exemption. I urge the Minister to look at that.
There have been varying perspectives. The noble Lord, Lord Dodds, brought an opposite perspective, with some important questions. The noble Baronesses, Lady Suttie and Lady Wheatcroft, and my noble friends Lord Murphy and Lord Ponsonby, brought another perspective, but the bottom line is that we want the Northern Ireland economy to thrive, to grow and to be boosted, and not to have any impediments or barriers placed in its way. So, looking forward to further responses from the Minister, I beg leave to withdraw.
Code of Practice on the Recording and Retention of Personal Data in relation to Non-Crime Hate Incidents
Lord Murray of Blidworth Excerpts(1 year ago)
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Lord Murray of Blidworth
That the draft Code of Practice laid before the House on 13 March be approved.
Relevant document: 35th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument). Considered in Grand Committee on 26 April.
Motion agreed.
Migrants: Housing
Lord Murray of Blidworth Excerpts(1 year ago)
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Lord Blunkett
To ask His Majesty’s Government whether they will list all facilities they plan to build to house: (1) new migrants entering Britain via the English Channel, (2) migrants currently awaiting first determination on their asylum claim, (3) migrants who have been refused their asylum claim on first determination, and (4) migrants currently in hotels but designated for transfer to other accommodation.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
I can advise the noble Lord that the Home Office is planning initial asylum accommodation at surplus military sites at Scampton and Wethersfield to accommodate asylum seekers entering the United Kingdom illegally on small boats. We are exploring proposals to use a non-military site in East Sussex and a further military site at Catterick garrison for asylum accommodation, alongside an accommodation barge in Portland Port in Dorset. We are developing immigration removal centres at Haslar and Campsfield.
Lord Blunkett (Lab)
I am grateful to the noble Lord. A week ago, in broadcast interviews, the Home Secretary was asked a simple question: how many places are the Government seeking to provide in this endeavour to lock up those coming across the channel? I am afraid intellectual internal struggle proved futile and, in the end, she reverted to saying simply, “Well, it will not be 45,000 places we will need”. The Minister will have had a chance to think about the obvious question: just how many secure places for migrants are the Government actually intending to provide?
Lord Murray of Blidworth (Con)
The answer is that the Government will keep the situation under review and see how many places are required, because the effect of the Bill, when it is passed through this House and the other place, will be to deliver a deterrent effect. Furthermore, those who cross the channel illegally will be removed within 28 days, as is planned in the structure of the Bill. Therefore, the need to detain people will be kept under review and, it is hoped, be limited in number.
Lord Cormack (Con)
My Lords, if the Government are going to keep things under review, will the Minister please review Scampton in Lincolnshire? It is a historic airfield from which the 617 Squadron flew in the last war. We have plans in Lincolnshire to transform it, now that the Red Arrows have gone, into both a museum and a site of industrial production of the technological kind. The Home Secretary has ridden roughshod over the feelings of local people and plans to desecrate a lovely part of Lincolnshire—can that please be put under review immediately?
Lord Murray of Blidworth (Con)
I hesitate to disagree with my noble friend but the site in Scampton is well-suited for the purpose of housing asylum seekers. The heritage buildings at Scampton will of course be preserved. While the Home Office listens intently to all representations about the locations of asylum accommodation facilities, it is the case that Scampton is a suitable site and we intend to begin using it.
Lord Alton of Liverpool (CB)
My Lords, has the Minister had the chance to read the debate in another place and the amendments moved by his right honourable friends Theresa May MP and Sir Iain Duncan Smith MP, specifically to retain the protections for people who have been victims of human trafficking within the United Kingdom? Does he intend, when he speaks at Second Reading of the Bill next week, to give assurances to the House that this will be dealt with? Will he also say why the Home Secretary has refused to appear before the Joint Committee on Human Rights to defend legislation that does not even have a disclaimer saying that it is compatible with our obligations under the European Convention on Human Rights?
Lord Murray of Blidworth (Con)
I thank the noble Lord for his question. I reassure him that I have followed closely the debates in the other place, and in my speeches to the House at Second Reading I will extensively cover the questions raised by my right honourable friend the Member for Maidenhead, and address the broader questions in relation to modern slavery. It is not for me to explain the diary arrangements of the Home Secretary, but I can confirm to the noble Lord that the Home Office takes very seriously its engagement obligations with committees of the House.
Lord Touhig (Lab)
My Lords, since 2021, 4,500 unaccompanied migrant children, some as young as 10, have been placed in hotels, and more than 200 have gone missing and have not been found. In March, when I asked the Minister if the Home Office had sought legal advice as to whether it had the powers to do this, he declined to answer me. Section 20 of the Children Act 1989 gives local authorities alone statutory power for child protection—that includes unaccompanied migrant children. Can the Minister say which Act of Parliament has allowed the Home Office to set this one aside?
Lord Murray of Blidworth (Con)
There has been no intention to set aside any provision of the Children Act. As the noble Lord will have seen on his careful reading of the Illegal Migration Bill, there are provisions set out that deal with the transfer of responsibility for children and the approach to be taken to unaccompanied asylum-seeking children who arrive after 7 March of this year.
Baroness Hamwee (LD)
My Lords, there are so many questions arising about the standards that will apply in the “facilities”—if I can use that term—around safeguarding, how families with or without children will be dealt with, and how children alone will be dealt with, and around facilities for medical provision, legal advice and so on. Will the Government publish the contracts that they are entering into with private sector providers, so that one can keep an eye on what standards are being required of them?
Lord Murray of Blidworth (Con)
Commercial contracts are commercially sensitive, and the usual policy will be adopted in relation to them. Clearly, certain standards will be promulgated, and the noble Baroness will be able to look at those. I would be delighted to facilitate any visits that the noble Baroness may wish to make to the facilities.
Baroness Meacher (CB)
My Lords, I understand that the Home Secretary’s model for the provision of accommodation for asylum seekers is that of the Greek islands of Chios, Lesvos and Samos, where the accommodation is described as “deplorable” by Médecins Sans Frontières, which has been working there. I understand that the trauma of these asylum seekers is made worse by daily stresses and fears and the lack of medical attention. Can the Minister assure the House that every effort is being made within government to require the Home Secretary to change her model for the provision of accommodation for these asylum seekers to ensure that we comply with our international obligations?
Lord Murray of Blidworth (Con)
I do not recognise the description that the noble Baroness appends to my right honourable friend the Home Secretary’s alleged assertion in relation to the Greek islands. Clearly, those crossing the channel from France, who have hitherto slept on the hinterland of the beaches in northern France, are much better accommodated by quality hotel rooms paid for by British taxpayers, and that is something that we need to address. We need to provide adequate but basic accommodation in order to disincentivise those coming here who seek to take advantage of the generosity of the British people.
Lord Coaker (Lab)
My Lords, further to my noble friend Lord Blunkett’s question, surely the Government must have a figure for the number of migrants and asylum seekers that they seek to detain. If the Government have no figure at all—not even a working figure within the Home Office—how on earth do they know how many RAF bases they will need to build accommodation on? How many cruise ships, oil rigs and barges are they going to get if they have no idea of how many people they are going to need to detain?
Lord Murray of Blidworth (Con)
The noble Lord well knows that it is not the Government’s practice to share working policy assumptions in relation to these issues. As I said, the effect of the Bill will be to deliver a deterrent effect; fewer people will cross the channel and therefore fewer people will need to be detained.
Lord Carlile of Berriew (CB)
My Lords, will the Minister give a clear undertaking to this House, without any equivocation, that all measures for dealing with asylum seekers and refugees will be in compliance with current UK law and current UK international treaty obligations?
Lord Murray of Blidworth (Con)
The Government will always obey the domestic law.
Lord Dobbs (Con)
My Lords, tens of thousands of migrants have crossed, and are crossing, into this country, in many cases having made an incredibly dangerous journey across two seas and across many other countries in Europe. What does the Minister think is their prime motivation in coming to this country, rather than any of the other countries that they could have accessed?
Lord Murray of Blidworth (Con)
There is no single answer which I can provide to the House. There are many people who come to this country and many different motivations. That has been the subject of myriad academic studies, and it will continue to be studied. I am afraid there is no one clear answer.
Code of Practice on the Recording and Retention of Personal Data in relation to Non-Crime Hate Incidents
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Lord Murray of Blidworth
That the Grand Committee do consider the Code of Practice on the Recording and Retention of Personal Data in relation to Non-Crime Hate Incidents.
Relevant document: 35th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
My Lords, I begin by acknowledging that non-crime hate incidents have attracted a significant amount of controversy, particularly in this place, due to concerns relating to free speech. I am grateful to all those who expressed their views on this topic during the passage of the Police, Crime, Sentencing and Courts Act 2022. The Government fully understand the strength of feeling on this matter, both within this House and among the public more widely, which is precisely why we laid this code before Parliament on 13 March.
Let me first explain that the collection of non-crime hate incident information is a key legacy of the Macpherson inquiry into the murder of Stephen Lawrence. This information pertains to incidents which are not crimes and provides the police with the means to understand tensions within communities or cases involving particular individuals before they can escalate into serious harm. In this respect, this data is vital for helping the police build intelligence to understand where they must target resources to prevent serious crimes or harms which may later occur.
This Government are absolutely clear that vulnerable individuals and communities must continue to be protected. However, non-crime hate incidents must never be used to inhibit lawful debate, and we must also be very careful about what information is kept on an individual’s record. This balance has unfortunately not always been struck, and this issue is precisely what the code is designed to address.
Free speech is a cornerstone of our democracy. This code addresses concerns that those who express views which some consider offensive but are not against the law are at risk of becoming the subject of a non- crime hate incident report, and that this may result in their personal data being stored on a policing record. It addresses those concerns by introducing new safeguards to ensure that personal data may be included in a non-crime hate incident record only if the event is clearly motivated by intentional hostility and where there is a real risk of escalation causing significant harm or a criminal offence.
To be recorded as a non-crime hate incident or NCHI, the police must judge that any perception of hostility is valid; the complaint must not be irrational, trivial or malicious. This will ensure that the police record NCHIs only when it is absolutely necessary and proportionate to do so, and not simply because someone is offended. The code also provides detailed guidance on freedom of expression. Clear case studies to illustrate how this fundamental right should be considered in practice by the police are also set out.
We are confident that the content of the code fully reflects the Court of Appeal’s judgment in the case of Harry Miller v College of Policing, which was handed down in December 2021. The court found that the recording of these incidents is lawful but must be subject to more robust safeguards to ensure that such recording is proportionate and protects free speech. As I have mentioned, this is exactly what the code provides. I particularly thank the National Police Chiefs’ Council, the College of Policing and senior police officers, who have engaged with Home Office officials throughout the drafting process to ensure that this code will work from an operational standpoint.
The College of Policing is also currently updating operational guidance for police on the recording of such incidents to ensure this guidance aligns with the new code. The college will also roll out the requisite training for police officers to ensure that the principles within the code are fully understood and embedded within everyday policing practice. This will ensure that the code is applied consistently by forces across England and Wales.
To reiterate, by taking these steps, we are protecting the vital changes that have been implemented by policing since the Stephen Lawrence inquiry. We continue to recognise the need to record intelligence that enables the police to intervene to prevent serious harms and future crimes, and we are determined to support the police in protecting the public. However, we have listened to the concerns raised in relation to the fact that this recording has at times gone too far, and we have acted on them. This code will better protect people’s fundamental right to freedom of expression, as well as their personal data, while still ensuring that vulnerable individuals and communities continue to be safeguarded. By bringing forward the code, we have also ensured that the process is subject to much-needed democratic scrutiny. With that, I commend the draft code to the Committee and beg to move.
Lord Sandhurst (Con)
My Lords, I must begin by acknowledging the role of my noble friend Lord Moylan, who sadly cannot speak in this debate today. My noble friend moved amendments, which I supported, to the then Police, Crime, Sentencing and Courts Bill in the autumn of 2020. We sought to make the Secretary of State responsible for determining five things in particular: first, the basis on which the record of the incident is to be kept; secondly, how those sensitive records are to be kept; thirdly, for how long they are to be kept; fourthly, what provisions there would be for review; and, fifthly, to whom and on what basis the information on them might be disclosed.
I remind the Committee that, until now, there has been no formal basis to ensure a proper system for selecting and recording what is to be logged, what personal data are to be kept, or when, if ever, the matter is to be reviewed. Nor was there any consistent basis as to when the subject would be given the opportunity, if at all, to respond. This code of practice, made pursuant to what is now the Act, is therefore the first such code of practice on this important matter. Having read it with care, I commend it to the Committee and believe we should approve it. It addresses all our core points and it is good to have it on a proper statutory basis.
Looking forward, however, there are a number of things. We must keep the code of practice’s application under review. I understand that the number of reports which are now on record runs well into six figures—a very large number. Remember that the subjects have committed no crime, but in many cases their names have been recorded and remain recorded.
Lord Murray of Blidworth (Con)
I thank all noble Lords for participating in this very interesting and important debate, particularly for the supportive and constructive atmosphere in which it has taken place. I reiterate my gratitude to the College of Policing and the National Police Chiefs’ Council, and to senior police officers who helpfully have ensured that the code was fit for purpose. Its introduction will be another step forward in our effort to embed common-sense policing across the system, while ensuring personal data and the fundamental right to free speech are better protected.
I will begin by responding to the various points raised by noble Lords and commence with those raised by my noble friend Lord Sandhurst. I thank him for his support for the code. On his request relating to forces reporting NCHIs, it is important to avoid creating additional burdens on the police. As I said, NCHIs are vital for building community confidence and ensuring that significant harm and future criminal offences can be averted. The key thing is to ensure that this recording is properly regulated and that personal data is recorded only when it is necessary and proportionate to do so. This is precisely what the code does.
I also want to be clear that we will not ask forces to delete all existing records because valuable police intelligence would be lost and, fundamentally, it would not be a proportionate use of police resources to undertake a review of all existing records. However, where these records exist and if in any context they are reviewed—for example, during general policing inquiries for the purposes of an enhanced DBS certificate or when a person makes a subject access request—the code makes it clear that particular care should be taken to review the record before considering disclosure. Part of the consideration will include deciding whether, applying the threshold and processes set out in the code, the record should have been created in the first place. If not, the record should be deleted. Individuals can also seek removal of data held by forces via subject access requests. In addition, any records which no longer have a policing purpose and are older than six years will automatically be deleted in line with force record retention practices.
To address the final point raised by the noble Lord, Lord Ponsonby, in relation to family courts, if a non-crime hate incident meets the threshold to be recorded it might be disclosed to the family and other courts by the police in accordance with the Family Procedure Rules and the Civil Procedure Rules in the usual way.
Various noble Lords raised particular cases in the course of their speeches. I am sure noble Lords will appreciate that it would not be appropriate for me to comment on particular incidents, but I can say that the new code is designed to ensure that the police record NCHIs only when it is absolutely necessary and proportionate to do so, not simply because somebody is offended.
In his speech, my noble friend Lord Strathcarron raised issues on the role of the College of Policing. I empathise entirely with much of what he said, and his points were echoed by other noble Lords in the Committee. The Home Office is working very closely with the College of Policing to ensure that its authorised professional practice accurately reflects the contents of the new code. Much of the content of my noble friend’s speech was correct.
In the same vein, I welcome my noble friend Lord Leicester’s speech supporting the code of practice. To be clear, the college will publish operational guidance documents for the police on how to deal with the many different types of crimes and incidents, which will be known collectively as the authorised professional practice. It will be considered the official source of professional practice for policing. As it is vital to forces and will cover a number of technical matters, it important for the college to determine how best to operationalise the content set out in the code. However, we are clear that the college’s guidance must be consistent with the provisions and principles in the code before the Committee today, which will have statutory effect once it is approved by Parliament. That means that when the police are taking relevant decisions, they must give due consideration to what the code says.
The college has recently consulted on the draft updated version of the APP, which has been amended to ensure that it aligns with the principles set out the code. It is currently considering the responses received and will make any necessary changes before the code comes into effect. The college will then publish the final, updated version of the operational guidance, once the code is approved by Parliament, which will take account of the points raised during the consultation.
On my noble friend’s point about training for officers, the College of Policing is responsible for determining the training requirements for forces and has developed an e-briefing pack which will be made available one week before the updated guidance enters into effect. The College of Policing will also communicate with forces, via chief constables, about the changes prior to the code and the updated operational guidance coming into effect.
I will take away the point raised about Article 10 training and raise it with the college.
Lord Murray of Blidworth (Con)
I turn to the speech of my noble friend Lord Jackson of Peterborough. Of the issues he raises, I will just address the question of how the code interrelates with DBS checks. This code does not prohibit disclosure of non-crime hate incident personal data as police information on an enhanced criminal record certificate issued by the Disclosure and Barring Service—the DBS. This is for two main reasons. First, NCHIs are simply one form of police intelligence that sits alongside many others—missing persons data, anti-social behaviour, unproven allegations of sexual assault and so on. They exist in line with the police’s common law powers to prevent crime. There are circumstances where police non-conviction information of various kinds will be considered for disclosure in enhanced DBS checks used in relation to roles which involve close working with vulnerable adults or children. Maintaining this regime is essential for safeguarding the rights of others, particularly the most vulnerable.
Secondly, the rules surrounding disclosure of this type of data are already governed by statutory disclosure guidance produced by the Home Office. Non-crime hate incident intelligence is not an exceptional form of police intelligence; it is simply a type of non-crime incident data, collected by the police to prevent crime, hence why it is covered in the same statutory guidance. This statutory disclosure guidance has been tested by the courts, and assists chief officers of police in making fair, proportionate and consistent decisions in determining when local police information should be included in enhanced criminal record certificates. Singling out this category of police data for non-disclosure would be inconsistent with the principles set out in the statutory guidance and probably unnecessary and disproportionate.
The safeguards in the statutory disclosure guidance are very robust. Should a chief officer consider that information is relevant to the purpose for which the check is sought, it ought to be disclosed in line with the guidance and the applicant invited to make representations. Only in cases where there is no room for doubt that the information should be disclosed should a decision to disclose be taken without first giving the applicant an opportunity to make representations. Should the decision to disclose be confirmed following any representations, that information will be included on the certificate that is sent to the applicant only. The applicant also has a right to appeal that disclosure through the independent monitor who considers cases where an individual believes that information disclosed within a DBS enhanced criminal records certificate is either not relevant to the purpose that the check is to be used for, or that it ought not be disclosed. The safeguards therefore balance the rights of job applicants and those of vulnerable people they might have contact with.
Alongside the existence of this strict statutory disclosure guidance, I can reassure your Lordships further. DBS records suggest that, in any event, it is rare for non-crime police information of any sort to appear on an enhanced criminal records certificate supplied to a potential employer. This type of information featured in only 0.1% of the 3.9 million enhanced checks issued by the DBS between April 2019 and March 2020. It is imperative that we do not set an unhelpful precedent by legislating in a way that undermines the police’s ability to build intelligence on possible offending and risks to life more broadly.
The first of the two questions raised by my noble friend Lord Bourne was in relation to the cost of this scheme. Information is published in the economic note on the code on the GOV.UK website. At paragraph 19, there is an explanation of the costs:
“Costs related to this are estimated at £9,200 in the central scenario and cover 10 per cent of chief inspectors and 1 per cent of sergeants being required to read the update”.
My noble friend will see that paragraph 21 states:
“The range of estimated costs vary from the central estimate of £9,200 with a low estimate of £3,500, and a high estimate of £0.4 million”.
A careful analysis has been made of the potential costs and the time taken to consider the code. I hope that that addresses the cost question.
During the debate, my noble friend Lord Bourne and a number of other noble Lords raised a question about consultation. This, of course, is the issue that was raised by the Secondary Legislation Scrutiny Committee. As I mentioned earlier, the Government consulted relevant policing stakeholders, including the College of Policing, the National Police Chiefs’ Council and senior police officers. The code is designed to be used by the police on a day-to-day basis, so it is right that we consulted them. Let me be clear that extensive legal and operational nuances were considered during the drafting of the code. These nuances were worked through with experts in the policing, data protection and legal fields, and the Government are confident that this is the right approach for such a specialised code.
Lord Bourne of Aberystwyth (Con)
I accept what the Minister said and thank him for it, but I was keen to find out why the feedback was not published.
Lord Murray of Blidworth (Con)
I will make inquiries in relation to that and write to my noble friend.
I turn to the remarks made by the noble Baroness, Lady Brinton. We were all shocked and saddened by the offending to which she was exposed that she described to the Committee. It is the Government’s view that the code takes particular care in relation to vulnerable individuals. The examples it gives are designed to be examples of non-criminal offences. The matters which were described by the noble Baroness were criminal offences, and the police will follow other guidance if an actual crime has occurred. The incident at Euston which she described sounded to me like an offence of assault at the very least.
The scope of the code is limited to non-crime hate instances. The examples in the text are hyperlinked and are used to illustrate non-crime hate incidents. The code states that,
“where the behaviour of the subject falls short of criminal conduct but may later be evidence of a course of criminal conduct”
the threshold to record a non-crime hate incident may be met. I hope that provides some reassurance to the noble Baroness.
I believe I have addressed the points raised by the noble Lord, Lord Ponsonby. I commend the draft code to the Committee.
Motion agreed.
Fishing Industry: Visas for Foreign Workers
Lord Murray of Blidworth Excerpts(1 year ago)
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Lord Coaker (Lab)
My Lords, the UK’s fishing industry is in turmoil given the Government’s decision to implement a new visa scheme immediately, potentially leaving it short of workers. Why are they doing it? Fishing businesses are waiting weeks for the Home Office to process skilled worker visas. Is it not more sensitive to business viability to wait before implementing the scheme while the Home Office sorts the scheme and itself out? Could the English language requirement for the visa, for example, be made more sensible and reasonable? The UK’s valuable and vital fishing industry is going to be put at risk by this high-handed action by the Government. Are they going to act to sort it out, or refuse to listen to the legitimate concerns of the fishing industry?
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
Since the original Question was answered in the other place by Miss Dines, my right honourable friend the Secretary of State has written to stakeholders to inform them of the details of the generous support package which was communicated today to industry leaders and stakeholders. The package is designed to help producer organisations and individual businesses in the seafood sector understand the immigration system and to offer Home Office premium expedited services and products at no cost. It includes: hosting an initial familiarisation session for key leads; working with our commercial partners to ensure that there is sufficient English language testing capacity at locations where workers could be recruited; working with our commercial partners to ensure that workers can access visa application centres to give biometrics; and, once a sponsor licence is received, expediting the decision-making process for no extra charge. Once visa applications are received from workers, expediting the visa decision-making process will also be at no additional charge. Our service standard is 15 working days, but we will endeavour to make decisions in eight to 10 days. We will also appoint a dedicated point of contact in UK Visas and Immigration in relation to these matters.
Lord Teverson (LD)
My Lords, the record of this Government and the Tory party is that they talk about how they defend the fishing industry, yet over the last few years they have seemed determined to destroy it. Why does a vessel need a different crew when it fishes within territorial limits from the one it needs when it fishes beyond them? This seems to be red tape, as does the scheme the Minister just explained. This industry has been on its knees, and we need it to thrive—surely we need to change the way that this operates altogether.
Lord Murray of Blidworth (Con)
I thank the noble Lord for that question. It has been the long-standing position of this Government and previous ones that foreign nationals coming to work in the UK—be that on land or in our waters—should comply with the immigration system when doing so. I do not believe that this is a controversial proposition, and the fishing industry is no exception. This House and the other place legislated to rectify and clarify the position in Section 43 of the Nationality and Borders Act. The action that the noble Lord complains about is merely the implementation of those provisions, which have been approved by Parliament.
Lord Knight of Weymouth (Lab)
My Lords, a week last Thursday, a good friend of mine in Orkney rang me in some distress. He runs a crab fishing business with two vessels, with several thousand crab creels at the bottom of the north Atlantic. The decision made by the Home Office, which was effective that day, meant he had no way of going and servicing those creels and no way of bringing them in. There is no space on the dock for him to land them if he could bring them in, but if he went to get them with his crew, he would be subject to a potential £20,000 fine per crew. He applied many weeks ago for the skilled worker visas and they are still being processed, so today’s letter was not received with great cheer. Can the Government make a special dispensation for Orkney crab businesses to carry on fishing in their traditional waters, which are far off in the north Atlantic but count as inshore due to three tiny uninhabited islands? If they were discarded from the calculation around inshore waters, an important traditional industry for Orkney would be allowed to survive.
Lord Murray of Blidworth (Con)
I know that the noble Lord is a doughty campaigner on these issues. Indeed, we have previously exchanged views on this. I am happy to look at the suggestion he raises, but it is right that the fishing industry should be able to utilise domestic labour where possible and use the skilled workers visa route to employ foreign nationals if necessary within 12 nautical miles. I am afraid that it is not within the department’s ability to change the geography of the waters around Orkney, but I will certainly look at the matter he raises and write to him about it.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, on Thursday 13 April, the Home Office announced that the scheme to allow visas for workers in aquaculture and offshore renewable industries would now cease for the fishing industry with immediate effect. This caused both outrage and chaos among fishermen, who are now to be classed as skilled workers, unlike seasonal agricultural workers. The immediate cessation of the visa system for the fishing industry came as a total shock. Why was this announcement so sudden, and why was it made during the Easter Recess, producing a catastrophic impact?
Lord Murray of Blidworth (Con)
I thank the noble Baroness for that question. It cannot have come as a total shock because we debated the provisions in the Nationality and Borders Act when it passed through Parliament, so the industry had a clear indication at that point of the Government’s intention and direction of travel. Turning to the noble Baroness’s substantive point, I point out that there are fundamental differences between fishing and the agricultural sectors. The agricultural scheme is seasonal and temporarily provides low-skilled labour for peak seasons in roles that are generally not eligible for skilled worker visas. The fishing industry, by contrast, operates all year round, and the occupations are eligible for skilled worker visas.