Border Security, Asylum and Immigration Bill

Baroness Hamwee Excerpts

Committee stage
Thursday 26th June 2025 Lords Chamber

[Lord Davies of Gower (Con)]

My Lords, it is a pleasure to open this first day of Committee. I will speak also to my Amendments 2, 26 and 27 in this first group. At Second Reading, a number of noble Lords raised the issue that the commander will essentially be a civil servant with co-ordination functions: a commander with nothing to command. I have tabled these amendments and a number of others to seek to rectify the situation and probe the Government’s full intentions for the new role.

Amendment 1 seeks to replace the words

“designate a civil servant as the”

with “appoint a”, thereby specifying that the commander does not have to be a civil servant. Nothing here serves as a critique of the current border security commander, Martin Hewitt, coming as he does from a law enforcement background; rather, it is a critique of the Government’s limited ambition for this new role.

That is not just my view but that of Tony Smith, the former director-general of UK Border Force. He said in evidence to the Public Bill Committee in the other place that

“the first thing that struck me is that the Border Security Commander will be another civil servant. I think it will be a director general post in the Home Office. I was a director general, and we already have quite a lot of them. I am not sure he will actually be able to command anything. He is probably going to be more of a co-ordinator”.—[Official Report, Commons, Border Security, Asylum and Immigration Bill Committee, 27/2/25; col. 40.]

Those were the words of the person whose job it was to lead the agency that polices our borders. As he stated, there are already enough civil servants co-ordinating activities within the Home Office. The Small Boats Operational Command already exists, so can the Minister tell the House how it will work with the commander? How will their roles differ, and what degree of interoperability will exist?

As Tony Smith made very clear to the committee in the other place, if the Government wish to achieve their stated goals, Border Security Command needs to have expanded powers, for example to arrest and detain in the same manner as Border Force, the NCA and Immigration Enforcement. If the powers of the commander and his team remain as they are instituted in this Bill, they will be essentially toothless in their ability to tackle illegal migration. This is a role that, by the Government’s own admission, is meant to help secure our borders, disrupt criminal networks and co-ordinate multiple agencies in the face of complex cross-border threats. Surely, we can all agree that this is not a job for a generalist administrator or a nameless Whitehall official; it demands specialist knowledge, strategic leadership and operational credibility.

Amendments 26 and 27 are essentially consequential. They amend Clause 7, which relates to delegation of the commander’s functions, and Clause 8, which permits the designation of an interim commander. Just as I am concerned by the first clause, I am potentially even more concerned about the possibility of delegation. This commander might be well qualified for the task, but who will he delegate to? As the Bill stands, this will be a civil servant. We must ask whether this is appropriate for the task at hand. My amendment would ensure that only a person of appropriate rank—a similar rank to the commander—would be able to undertake any of the functions bestowed on the commander under the Bill. These amendments would therefore introduce a vital safeguard: that the commander may appoint only a person of appropriate rank and qualifications to fulfil delegated functions, not just anyone who happens to be on the departmental payroll. They would help ensure that we do not fall into the trap of creating yet another abstract, symbolic post—another title without substance, which I am afraid is what the Bill proposes.

I had the pleasure of meeting and spending an evening with the honourable Scott Morrison a few weeks ago. He explained that, when Australia began Operation Sovereign Borders, it instituted a structure that, on the surface at least, appears somewhat similar to this Government’s Border Security Command. Its job was to co-ordinate and lead the 16 agencies that had border security functions. However, there are two crucial differences: first, the Australian system came with far more robust powers than are in this Government’s plan; and, secondly—this is the crucial difference—the Australians appointed a senior military commander, Deputy Chief of Army Major General Angus Campbell, to lead their border security efforts.

This leads on to my Amendment 2, a probing amendment which seeks to gauge the type of background that the Government think most appropriate for the role of commander. I have specified that the commander should be only a former or current officer of the National Police Chiefs’ Council—meaning assistant chief constable or above—commander or above in the Metropolitan Police, a senior officer in Border Force or Immigration Enforcement or a senior military officer of at least brigadier-general, commodore or air commodore rank in the Royal Air Force. This amendment would therefore specify that the commander should be a senior police, immigration or military officer, which I believe would put the office on a stronger footing.

If we are serious about this role having teeth and want it to be a powerful, directive position that can genuinely drive change, then the least we can do is to require that the person filling it has the experience to do so effectively. We cannot afford to build this office on vague criteria and wishful thinking. The public deserve confidence that this position is not just another bureaucratic appointment but one that is fit for purpose from day one. I urge the Committee to support this, and I beg to move.

[Baroness Hamwee (LD)]

My Lords, I should explain that I have not usurped the position of my noble friend Lord German, who is in Strasbourg at the Council of Europe. I hope that noble Lords will forgive me for not being physically on the Front Bench; from this position, I can be propped up.

Although Martin Hewitt has, as the noble Lord, said, a law enforcement and—I believe—Army background, I do not think it is necessary for the commander to have “rank”, to use the term in his Amendment 26. If the border command and the commander prove effective—in other words, if the institution lasts—I hope that the Secretary of State would be imaginative enough to think outside the box of people to whom the rank might be applied and consider those who might usefully carry on the function.

I do not want to speak too long at this point, but the noble Lord picked up the issue of delegation. It struck me—I understand it is not possible to amendment it—that the heading to Clause 7 really does not describe what is in the clause. The clause is right; it spells out where responsibility lies—that is not delegation. The responsibility remains with the commander, and I think that is correct. I do not know whether anyone can pick that up somewhere behind the scenes, at a later point.

[Viscount Goschen (Con)]

My Lords, I support the thrust of my noble friend’s amendments in this first group. Chapter 1 puts the commander role and organisation on a statutory footing but, as we heard, we already have a commander in place and the Bill provides very few—if any—real powers beyond the ability to facilitate co-operation between other public agencies. Given that those agencies are already arms of government and come under the responsibility of Ministers, who could presumably direct them to co-operate in the way the Government intend, I have a slightly broader question for the Minister: why is Chapter 1 necessary? Why do we need to put the commander on a statutory footing? This leads directly to the group of amendments that my noble friend has proposed.

We always need to be very careful about legislating just to make a public statement or point. Can the Minister tell us what the commander will be able to do under Chapter 1 that he is not able to do presently under the current arrangements? Who could argue with greater co-ordination between agencies, but do we really need the provisions of Chapter 1 to achieve that?

I am sure the Minister is grateful to my noble friend for trying to flesh out the role a little bit more. It is written in five or so pages, an awful lot of which has to do with the appointment, the board, potential removal terms and so forth. There is really very little—only a few lines—about the office’s real function and responsibilities.

Looking more specifically at Amendment 2 and my noble friend’s list in proposed new subsection (5)(a), (b) and (c), he might also consider adding someone with a background in the broader security apparatus of the country.

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[Lord Hanson of Flint (Lab)]

I appreciate the noble Viscount’s comments, but the clauses in Chapter 1—for example, “Duty to prepare annual reports”, “Duties of cooperation etc” and “The Board” overseeing all that—underpinned by statutory function give this House the confidence that there is a legislative background to those requirements on the Border Security Commander. The noble Viscount is right that the current Border Security Commander, appointed by the Home Secretary, is undertaking those roles as a civil servant, but it is important that we underpin that with a legislative framework so that this House, the House of Commons, the Government and the people are clear about what the roles and responsibilities are. We have taken that view, and the noble Viscount may disagree or want further clarification, but that is the purpose of the first 12 clauses of the Bill.

[Baroness Hamwee (LD)]

My Lords, far be it from me to be helping the Minister out at this point, but I want to be friendly. Exactly the same issues occurred to me, particularly that the commander is in post now and has been for months, as the noble Viscount said. Presumably it would not be possible, without a statutory basis, to require, for instance, co-operation with other statutory agencies. So, at the very least, the Bill would be needed for that.

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[Baroness Hamwee (LD)]

My Lords, the noble Lord, Lord Davies, has answered the first question that I had intended to ask on Amendment 3: whether what he was seeking was the opportunity for scrutiny and debate or a confirmation hearing of an appointment. I do not think that it is the latter.

I will just ask the noble Lord a question about Amendment 4. Would it be normal to publish such detail about a civil servant’s contract of employment? Would one really put the KPIs into the public domain in that sort of detail? What is important in this context is that determining “effectiveness”—the term used in the amendment—remains the responsibility of the Secretary of State. That will continue to lie with her. It must not be shuffled off or denied by having somebody in the role of commander.

In terms of the amendments, I am very doubtful about publishing the KPIs. But I am absolutely clear about the structure of this role and about where the responsibility for implementing policy must remain.

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[Baroness Hamwee (LD)]

My Lords, I confess to being irredeemably urban—or perhaps suburban—but “The Archers” does have a function in reminding us about pig breeding and the sizes of litters. Listening to noble Lords’ comments has made me think of a number of related issues. I think it is found in a number of parts of life that people who commit one type of crime often commit another type of crime as well. We are well aware of the flexibility, if that is the right term, of the smuggling gangs. It is entirely possible that there is some sort of read across, or at least something that we should be being flagged about.

This also made me think about health, because I believe that somebody came back from Morocco with rabies very recently. It particularly made me think about the competition for facilities at ports, certainly at Dover and, I dare say, at others as well. When I was a member of the Justice and Home Affairs Committee, it was made quite clear, particularly by the Port of Dover, that the issue of space to undertake immigration controls was a really big issue.

The answer may be for these relationships to be governed by other authorities falling within the category of partner authorities. However, as well as the points that previous speakers have made very powerfully, there are relationships that need to be thought about very carefully, and the competition for resources of all sorts which are raised by these arrangements.

We have Amendment 19 in this group, which probes whether cybersecurity is an element of border security; it is clearly an element of security. GCHQ is not a partner authority in the Bill, so it is not within the functions of Clause 3, nor is there a general duty to co-operate as applies under Clause 5—there are to be special arrangements. I do not have a solution to this, but it is a genuine question about where cybersecurity falls within the responsibilities and how the border commander is to take account of cybersecurity.

[Lord Davies of Gower (Con)]

My Lords, my Amendment 18 seeks to introduce another criterion to the definition of what constitutes a threat to border security. We believe it addresses a crucial and glaringly absent dimension from the definition of threats to border security—harm to the economic interests of the United Kingdom.

As drafted, the clause defines relevant threats as those involving criminality, risk of offence, or harm to persons or property. All that is right and necessary, but to leave out the economic dimension is to ignore one of the most significant consequences of border insecurity in the modern age. Illegal entry, organised immigration crime and abuse of our immigration system come at a cost, not just to public safety or border integrity but of real and measurable economic harm. This includes the burden placed on housing, healthcare and social services, and extends to the impact on wages, labour market distortions, the exploitation of workers and loss of public confidence in our immigration system.

These are some of the effects of illegal immigration which people across this country feel most keenly. We must ensure that we reflect this in our assessment of the threat which illegal immigration poses to us. If individuals are entering the UK unlawfully in ways that undermine legal labour markets, displace lawful employment or distort local economies through illicit practices, surely that is a matter of national interest. Surely that is as much of a threat to border security as any physical or legal risk. If our legal framework cannot even acknowledge that reality, how can it ever be expected to address it? This amendment would ensure that this important consideration is included in the Bill, in recognition of economic harm being one of the most serious effects of this issue.

I take this opportunity to speak to some of the other amendments in this group. Amendments 6 and 14, tabled by the noble Lord, Lord Rooker, address an important and often overlooked issue. Illegal meat imports present a genuine risk to our agricultural sector, as we have heard, and affect our food supply chains and public health. The potential introduction of diseases such as African swine fever or foot and mouth through contaminated meat would be catastrophic, economically and environmentally. Biosecurity is a key part of our national security. The Government need to take action to ensure that this threat is addressed.

The amendment in the name of the noble Baroness, Lady Hamwee, raises a matter that I hope the Government will clear up in their response. Cybersecurity is an important responsibility of the Government. I am not quite sure how it relates to border security and asylum, but this is none the less a probing amendment that I hope that the Government respond to. I share the noble Baroness’s concerns about cybersecurity. We have seen a number of high-profile and extremely damaging cyberattacks in recent months. Ministers will be aware of the urgent need to tackle this. The noble Baroness is right to raise this issue. I look forward to hearing the Minister’s reply.

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I hope that gives my noble friend Lord Rooker, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Davies of Gower, some reassurance.

[Baroness Hamwee (LD)]

I will just come back on that—I do not mean that in any aggressive way. I certainly do not doubt the Government’s commitment on these issues. It is a matter of what is within the functions of the commander. The definition in Clause 3,

“‘border security’ means the security of the United Kingdom’s borders”,

does not take us a lot further—it is a bit circular. The Minister talked about “people”. I think that he said a “person” crossing the border. I am still not quite clear whether the security issues that are not about the physical crossing of the border come within the commander’s functions. That might be something we can discuss outside the Chamber to consider whether any further amendment would be worth tabling.

I am not yet clear about where the separations or divisions come—the answer being, of course, that it is all with the Government in some form or other. However, the functions of the commander and the scrutiny of Border Security Command require a clearer answer than the Minister may be able to give today.

[Lord Hanson of Flint (Lab)]

Before my noble friend Lord Rooker responds, I again refer the noble Baroness to Clause 3(2). It says very clearly, and this is why it is generic, that:

“The Commander must from time to time issue a document (a ‘strategic priority document’) which sets out what, in the Commander’s view, are—


(a) the principal threats to border security when the document is issued, and


(b) the strategic priorities to which partner authorities should have regard in exercising their functions”.


That is a long-term proposal for a Border Security Commander to determine in the priority document that they are going to produce under this clause the strategic threats to border security. That would include, potentially, at any one time, biosecurity, cybersecurity, economic security and the issues of illegal immigration security that we are facing as a high priority at this moment.

I hope that Clause 3(2)(a) and (b) give the potential for that document to be produced. That document is going to be shared and discussed with the Home Secretary of the day. It will be produced later in an annual plan showing what is happening. That gives an opportunity for Members of both Houses to question, debate and discuss it at any time. If there was, for example, a glaring gap in biosecurity in that strategic document, it would be for Members of this House and the House of Commons to press Ministers on that. I am saying to Members today that it is a priority for the Government. It will be in the work of the Border Security Commander. The generic role set out in Clause 3(2) includes setting a strategic priority document.

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[Baroness Hamwee (LD)]

My Lords, I think this may be the moment to remind ourselves that “illegal” and “irregular” are not the same thing. Amendment 7 refers to “illegal migrant crossings”. It is not illegal to seek asylum, and a crossing is not the same thing as entry. I ask noble Lords to forgive me for that slightly pompous comment, but I think it is important.

I say again that it is the Secretary of State who holds the responsibility and the liability, if you like. I may be misunderstanding this, but there is a muddling of responsibility by, for instance, including prosecutions within the functions and, similarly, running UKBI casework and returns. I would also say on Clause 8 that one cannot know whether someone does not have leave, or has leave obtained by fraudulent means, and therefore the commander cannot leap straight to making arrangements for the return of such persons.

I have never been known not to support an amendment that requires consultation, and I am sorry that the noble Lord, Lord Browne, is not here to speak to his amendment, which seems to be in the usual formula. I thought it would be a rather good hook, and I will push it a little by saying that yesterday I received, as no doubt other noble Lords did, a briefing from the Bar Council, which refers to the importance of independent oversight and suggests that the independent inspector—I can never remember the words; the ICIBI—might have a role here. But since the amendment has not been spoken to, I had better not go that far.

We have Amendment 25 in this group. Again, it is a probing amendment. Under the Bill, the board is given a function to assist. But, as the commander’s functions are co-ordinating and setting priorities, perhaps “assist” cannot mean an operational role. My amendment proposing “advise” in place of “assist” probes how the Government envisage that the board will function and seeks to understand whether there is or is not—I assume there is not—any operational role here. Amendment 71 is in this group as well, but I will leave my noble friend to introduce that.

[Lord Dubs (Lab)]

My noble friend Lord Browne of Ladyton is unable to be here and has therefore asked me to speak to his amendment. I tried to add my name, but it was too late for the deadline.

Clause 9 requires the commander to comply with directions and “have regard to guidance” by the Secretary of State about the exercise of the commander’s functions. The amendment requires the Secretary of State to

“consult such persons as the Secretary of State considers appropriate before issuing or revising directions or guidance”

under Clause 9. That is fine, but the issue is whether we will ever know what guidance the Secretary of State has given; in other words, the purpose of the amendment is to ensure that, when the Secretary of State issues this guidance, she shall act in a transparent manner and consult appropriate persons before issuing or revising directions or guidance under Clause 9. It is a matter of having some openness in how this thing happens; otherwise, we will never know quite what instructions have come from the Secretary of State.

I understand that the Law Society of Scotland produced a pretty good briefing on this. Although the amendment does not, of course, confine itself to Scotland but covers all parts of the United Kingdom, nevertheless, my noble friend and I are indebted to the briefing from the Law Society of Scotland. This is simply a bid for openness in the way in which the functions are to be exercised.

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[Lord Cameron of Lochiel (Con)]

My Lords, in moving Amendment 15 I will speak also to Amendment 17; both are in my name and that of my noble friend Lord Davies of Gower. I will also reflect briefly on Amendment 16, tabled by the noble Baroness, Lady Hamwee.

Amendment 15 is a matter of legal precision. Legal precision, especially in issues as sensitive and complex as immigration enforcement, is a necessity. This amendment would define illegal entry to the United Kingdom with direct reference to Section 24 of the Immigration Act 1971. That Act has long provided the statutory foundation for offences relating to unlawful entry and overstaying. If we are serious about creating a coherent framework for the commander to operate within, we must be clear about what we mean by “illegal entry”. Without this definition, the term is left open to interpretation and could result in confusion, inconsistency and perhaps even legal challenge. By tying a definition directly to the existing law, we would ensure that there is no ambiguity and no risk of the commander operating under uncertain or shifting interpretations. It is a simple, necessary fix and sets widely accepted parameters, not only for our discussion now but for the law once it comes into force.

Amendment 17 is likewise rooted in common sense. It defines sea crossings as

“journeys by water from another country for the purpose of reaching, and gaining entry into, the United Kingdom”.

That is important because it makes it clear that a sea crossing can be regarded as having occurred from any third country. It is vital that we draft this legislation now in a way that allows our enforcement authorities to take robust action to stop this threat. How we define these core terms is important to ensuring that we can do this successfully.

We note that the Government’s current intention is to include sea crossings that originate only in France, Belgium or the Netherlands, as is stated in the offence of endangering another during sea crossings in Clause 18. We have an amendment to address that in a later group, so I will not dwell on it now, but suffice it to say that we do not think we should be narrowing the scope of the definition only to crossings that begin in these three countries. They might be the countries that illegal migrants cross from now, but we must ensure that the legislation is future-proofed. Given that the strategy—indeed, much of the public discourse—centres on the dangers and deterrence of these crossings, it is only right that the Bill is clear in defining what it actually refers to. Our amendment would close that gap.

I turn briefly to Amendment 16 from the noble Baroness, Lady Hamwee, which raises an interesting point about whether private bodies carrying out public functions are captured under the definition of “public authority”. I suggest some caution, though: although the intention is to probe and not prescribe, we must be wary of unintentionally expanding the net of liability obligation without fully understanding the operational and legal issues and consequences. If private contractors working at the border are to be brought within the scope of the commander’s influence, that should be considered through a fuller and more deliberative process, and not inserted without clear parameters.

So, although I appreciate the spirit of the amendment, I hope the Government can offer some clarification, perhaps in guidance or regulation rather than in primary legislation at this stage. The two amendments in our names are about clarity, consistency and good legislative practice, and they would support the effectiveness of the commander. I urge the Government to support them, and I beg to move.

[Baroness Hamwee (LD)]

We have Amendment 16 in this group. It is indeed a probing amendment. I am a little amused that the noble Lord has just criticised the expansionist tendencies of this amendment, given that that is what some of his earlier amendments have tended to suggest.

Clause 3(5) tells us that “public authority” means

“a person with functions of a public nature”.

Clause 3 makes public authorities “partner authorities” for the purpose of the chapter. Across the public sector—not just this one—private organisations are contracted to provide services, so I am probing whether such organisations are within the definition. Does the commander have authority over them—and, if so, how far?—or is it that, as I have been arguing for the whole of today, the responsibility lies with the Secretary of State for all this work? Of course, we know that the Home Office has contracted private sector organisations—to run asylum hotels, for instance—so my questioning is not totally theoretical.

I often worry that the Government are not always as good at procurement as one might like them to be—or, frankly, at enforcing contracts—so I hope that the private sector will not be put in an even stronger position in the sector. If it is, I for one would like to know. But this is a probing amendment, and I am not seeking to expand the territory.

[Lord Hanson of Flint (Lab)]

I am grateful again. I hope I can answer the noble Baroness, Lady Hamwee, immediately. As she outlined, her amendment seeks to probe whether private bodies carrying out public sector functions are included in the definition of “public authority” in Clause 3(5). I hope the clarification I can give her will be of assistance. It is as follows: private bodies carrying out public sector functions, such as the contractors working with Border Force, would fall under the definition of “public authority”. I hope that meets her probing amendment, but it is on the record that that is the position.

The noble Lord, Lord Cameron of Lochiel, again raised a number of amendments. Amendment 15 would require a definition of

“illegal entry to the United Kingdom”

to be included in Clause 3(5). Amendment 17 would require a definition of “sea crossings”. I say to him—and I hope he will reflect on this—that, in Clause 3(5), in the chapter, we have included the words “border security”, “partner authority” and “public authority”, and they have been explicitly defined due to their presence in other clauses in the chapter. My honourable friend the Minister in the House of Commons was clear that we do not want to put into the Bill issues that will be included in the strategic priority document or the annual report, to ensure that sufficient flexibility is retained to respond to the continually evolving threats to border security. If we were to accept the amendments that the noble Lord has proposed today, we would, by defining these terms, actually water down what is in Clause 3(5). “Border security”, “partner authority” and “public authority” are clearly defined terms in the chapter, giving the Border Security Commander the flexibility to address the issues of the day. I note a little shake of the head from the Opposition Front Bench. If the noble Lord remains unhappy, he should feel free to challenge. If he wants further clarification, I will try to give it to him. If he wants further further clarification, I will write to him, and if he feels that this does not meet the objectives that he has set, then we have the potential to discuss it at further stages of the Bill.

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, I apologise that I was unable to attend Second Reading. I have put my name to a number of later amendments, but I wanted to say how much I support the spirit of this group. On the issue of boat crossings, there is a feeling in relation to smashing the gangs that there is a huge amount of smoke and mirrors and not enough transparency and understanding. I fear that there is a climate of public distrust in which politicians are just not believed.

These amendments would therefore be really helpful to the Government, because they give assurances that this will be fully accounted for and not just a slogan, as has been indicated. The area around these crossings is a territory for rumour and potential misinformation. All sorts of figures are bandied around and people, because they no longer believe in the official figures, are open to all sorts of untrue figures. These amendments would help pin down exactly what this Bill will have achieved, which is very important.

There was an interesting incident recently where journalists—Patrick Christys and a team from GB News—helped to smash the gangs themselves. They did this by going on Instagram and pretending to be trying to get a crossing; they organised one and had WhatsApp communications, voice messages and so on, partly as a sting operation to show how easy it is to infiltrate the gangs and get this information. They passed on the information to the appropriate authorities. They have chased it up, and nothing has happened. Even though they had the names and phone numbers—because they were WhatsApp messages—of two gang leaders, nothing has happened to those people. Those journalists understandably used this to say, “For all the rhetoric about the gangs and this new piece of legislation saying that it will smash them, will it really?”

The first two amendments in this group will tell the public what they want to know about this Bill—how many gang leaders have been arrested and what exactly has happened. I urge the Government to look at these amendments favourably, as helpful to their cause and to the general atmosphere, so that we do not have public cynicism about political rhetoric without action.

[Baroness Hamwee (LD)]

My Lords, I am intrigued by Amendment 20 requiring a statement of

“the number of … gangs that have ceased to operate as a result of enforcement action”.

As I understand it, that is very difficult to know. The characteristic of these gangs is that individual smugglers group and regroup. You have smaller fish who may be better known than the bigger ones. Obviously, the objective that is the subject of this amendment is exactly the right one, but I do not know that there could be any useful or meaningful reporting in quite the way that the amendment suggests. I am sorry not to be supporting it.

On Amendment 21, I note how important it is to have good data, whether or not the six headings here are precisely what the commander should be producing. The more general point—I will go on repeating it—is that the responsibility lies with the Secretary of State, not the commander. It is important to have full and accessible data much more frequently, and more up to date, than in an annual report published some time after the financial year to which the information relates.

I agree with the noble Lord to the extent that this is about accountability, but I do not agree—as he will have gathered rather tediously from me, and I am sorry about that—that the accountability is that of the director. It is that of the Secretary of State.

[Lord Hanson of Flint (Lab)]

My Lords, we have had another useful discussion, and I hope that I can address some of the issues that have been put before the Committee today. The amendments in the names of the noble Lords, Lord Davies of Gower and Lord Cameron of Lochiel, would create a requirement for the Border Security Commander to include within the annual report a range of statistics relating to the new offences created by the Bill, and wider relevant statistics in relation to irregular entrants who have arrived via a sea crossing and/or deportations.

The first of these seeks to include statistics on human trafficking in the annual report, while the second seeks to include further information on the number of people charged on a range of new offences included in the Bill. As currently envisaged, the annual report must state how the commander has carried out the functions of their office in the financial year and set out the commander’s views on the performance of the border security system, with particular reference to the strategic priorities that have been set. The Bill makes it clear that, under its structures, a report will be laid before Parliament and published, providing both public and parliamentary accountability for the work of the Border Security Commander across all threats. The strategic priorities may change over time, as the threats evolve, and the commander would need to report against them.

The question at the heart of the amendments is: should we provide further statistics? In line with the statement of compliance with the code of practice for statistics, and as part of the Government’s big commitment to transparency, the Home Office already publishes a vast amount of data on immigration, including the themes within the amendment, in existing regular publications. We already have, over and above any amendment that might have been potentially accepted on this issue, quarterly statistics on people coming to the UK, extensions of stay, citizenship, asylum, detentions and returns. The quarterly immigration statistics release presents final and authoritative statistics on small boat arrivals. The appropriate place for that data is within established Home Office publications.

It is helpful information; the noble Lord should look at it, if he has the opportunity to do so. For example, it tells me that the number of small boat crossings rose from 300 people in 2018 to 36,000 in 2024—a 120-fold increase. I can get those figures from information that is in the public domain already, without it going into the Border Security Commander’s annual report. I can tell the noble Lord from quarterly statistics already produced that 29,867 people were returned between the general election on 5 July last year and 18 May 2025; the statistics tell me this is a 23% increase over the previous Government’s performance. If the noble Lord wants me to go on, I can say that there is a whole range of statistics saying, for example, that since 2018, 94% of the people arriving in the UK on small boats have claimed asylum. Around three-fifths of these have received a substantive decision, but it has taken a long time to get there. One of the reasons that we have cancelled the Rwanda scheme—which will come up later in the Bill—is so that we can put resources into speeding up asylum claims and improving on those statistics.

The noble Lord’s amendment asks us to put those in the Border Security Commander’s annual report. They are in place and are there for all to see. I cited a couple of them now. They are produced quarterly, so I can give him figures for the performance of this Government and the last Government. The two are, dare I say it, incomparable in most areas, because this problem arose and was driven under the previous Government. Those statistics are there and are done in a proper, official way, and the Border Security Commander’s annual report is to show how he performs on that matter.

Through Amendment 23, the noble Lords, Lord Davies and Lord Cameron, intend to reinforce the definition of sea crossings and ensure it is included in the commander’s annual report. I tried to explain on the previous group of amendments that we want to maintain flexibility in the annual report with this chapter, so I do not believe that amendment is necessary. But I want to reassure the noble Lord, in the spirit of the co-operation we self-evidently have in this discussion, that in producing the annual report, the commander will of course consider a range of evidence and data and will comment on how the strategic plan has been implemented with that data.

The noble Viscount raised the financial aspect of the commander’s annual report. The report is meant to be about his performance on and against the targets he has set. There is a place for financial accounts, but it is not in that annual report, in the view of the Government. He looks quizzically at me.

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Moved by

[Baroness Hamwee]

29: Clause 13, page 7, line 7, at end insert “, without reasonable excuse”
Member’s explanatory statement
This amendment, with others in the name of Baroness Hamwee to clause 13, makes the lack of a reasonable excuse a component part of the offence of supplying articles for use in immigration crime, thus placing the burden of proof upon the prosecution.

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[Baroness Hamwee (LD)]

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

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

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

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

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

[Lord Alton of Liverpool (CB)]

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

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

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

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

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

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[Baroness Hamwee (LD)]

My Lords, it is a day or two since I did any criminal law, and it was one time, in a magistrate’s court—then I started writing recording contracts.

I thank everyone who has contributed to this debate—although, I have to say, not always directly on the point being made by these amendments, and anticipating quite a lot of what we will come to on the second day of Committee. I do not want to get into discussion about the merits of what I think we will come to. My amendments do not deal with reasonable excuse, other than shifting how it is dealt with. They do not deal with the content of what is reasonable excuse.

I thank the noble Lord, Lord Alton, for bringing in the JCHR report. I have not read as much of it yet as I should have done; I went straight to the recommended amendments and put a tick beside each of them. The noble Lord asked for a government response before Report. I know the Minister will not be able to give any commitment on that, but it really would be helpful. We have a bit more room and flexibility now, as I understand that days 4 to 6 of Committee are not going to happen until the September sittings of the House, so there is rather more time—not that I want anyone to interrupt their summer holidays to deal with this, but noble Lords will understand.

My noble friend—I am going to call him both noble and a friend—Lord Paddick and I have trod this ground together before, and I am grateful for his expert and informed explanation of the sequence of events when there is a prosecution. He referred to articles that have more than one purpose. If something is, as I understand him to say, very obviously aimed at illegality and cannot be used for anything else, that is not the same as an article that may have more than one purpose.

The first time that he and I were involved in a debate in this territory it related to acid. At that time—this is a good 10 years ago—there was a spate of acid attacks, with people on motorbikes driving past pedestrians and throwing acid in their face. The issues that we were discussing included a domestic product that might well, in the circumstance, be used to clear drains—what if someone had nipped out late to a supermarket and bought a domestic product of that sort? I am not suggesting that this is straightforward, but it is hugely important.

I would say—to use language used by the noble Lord, Lord Jackson—that it is in the public interest. He said that the amendments were not in the public interest, but it is not pernicious to seek to amend the Bill in this way. On the contrary, it is seeking to apply and maintain the rule of law. Almost nothing could be more important for the public interest.

There were issues such as the pull factor, as the noble Lord sees it, a loophole, mens rea and other things. We should come to these fairly early on the next day in Committee. It may well have been that the first set of groupings put those issues into this group, but there was a change quite late yesterday.

It might be harder to get a conviction, but what are we looking for? Are we looking at doing the job properly? I do not mean just getting to an outcome but doing the job properly and acting properly. We should not, as the Minister suggested, be relying on common sense as to whether or not there is a prosecution. As I have said before, that is not the way our law should work, although I accept that the CPS will look at the public interest test and the likelihood of a conviction.

I come back to the rule of law. The Constitution Committee, of which I am a member, is undertaking work on this at the moment. It sounds dry, but it is at the heart everything that we do right. This is not the time to take these amendments further, but clearly we will be thinking about them after this stage. I beg leave to withdraw my amendment.

Amendment 29 withdrawn.