Immigration Control (Gross Human Rights Abuses) Bill [HL]

Baroness Kennedy of Shaws Excerpts

2nd reading (Hansard): House of Lords
Friday 15th December 2017 Lords Chamber

Moved by

[Baroness Kennedy of The Shaws]

That the Bill be now read a second time.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, it is impossible to embark on the Second Reading of this Bill without explaining briefly the shocking backdrop to this effort to create legislation which will bar entry to this country to people who are gross abusers of human rights.

Sergei Magnitsky was a Russian lawyer who acted for William Browder and his company Hermitage Capital Management. Bill Browder’s refusal to bow to the demands of Mr Putin brought state attention to his door and episodes of harassment and intimidation followed. In June and October 2008 Sergei Magnitsky testified before the public investigative committee in Moscow against corrupt officials who were involved in the corporate raid on Hermitage’s offices there which had taken place the previous year.

For having the temerity to challenge the power of the Russian state, Sergei Magnitsky was arrested and detained on trumped-up charges. The conditions in which he was held in pre-trial detention were horrendous: freezing cells, open sewage running underfoot and beds in such short supply that prisoners were forced to sleep in them in shifts. Sergei Magnitsky became very ill but was denied proper medical treatment. His family’s entreaties were ignored. He was kept permanently handcuffed and regularly struck with rubber truncheons. He was eventually found dead in his cell with injuries which were consistent with a final and hellish beating. It beggars belief that four years after his death he was tried—I suppose they would call it a trial in your absence—and convicted, having been posthumously prosecuted by the Russian state. The authoritarianism of Putin’s state reaches beyond the grave. Of course, what it was really doing was seeking to justify the cruelty that had been exacted by it against a lawyer who dared to stand up for the rule of law.

Those who were responsible for this catalogue of abuse have since been honoured by the Russian state and have hugely enriched themselves through fraud, using Hermitage as a cover. Sergei’s death left a mother, a wife and two children to grieve, as well as a devoted friend and client who was not going to take what happened lying down. Bill Browder is the only financier and banker I know who has turned into a dedicated, full-on, full-time human rights activist. Since Sergei’s death William Browder has worked tirelessly to secure justice. He has campaigned against the impunity which is enjoyed by the officials who committed those gross acts of inhumanity. Knowing that Russia under Putin will never prosecute those who jailed, persecuted and ultimately killed Sergei, Browder has lobbied and campaigned and urged other nations to deny sanctuary to his killers and to create laws which will deny those criminals the enjoyment of travel, the use of ill-gotten gains and the anonymity that which allows them to escape ignominy.

So far, he has persuaded the United States and Canadian Governments to legislate, and it is time that we did this, too. This is about creating a Magnitsky law. Human rights violators like those who murdered Magnitsky exist in other nations, too. In Sudan, there are generals like Salah Gosh, who was identified by a UN panel of experts as an individual who should be subject to sanctions because of his role in the Darfur atrocities. There is another general, Major General Abdel Rahim Mohammed Hussein, who has outstanding warrants from the International Criminal Court for his role in crimes of inhumanity and war crimes, all relating to Darfur.

In the Congo we have seen grievous atrocities and the mass rape of women. In parts of the Middle East, too, criminals walk free and come regularly to this country. The generals in Myanmar also come to mind at this time. The United Nations Commission on Human Rights can identify and provide evidence on these violators of human rights. They should not be able to come here, sink their money into expensive properties, have their operations in our private hospitals, send their children to expensive private schools and live in our midst with impunity. Assets can now be frozen. This Bill is to deny them visas.

The US and Canadian Magnitsky Acts contain three distinctive elements that provide a template to be replicated the world over: asset freezes, travel bans and the explicit naming of the individuals whose conduct has led the Government to sanction them. At present, the UK has only the asset-freezing aspect of a Magnitsky law. This was introduced when the Criminal Finances Act, which had a “Magnitsky amendment” attached to it, received Royal Assent in April 2017—this year—having passed through Parliament in the preceding months. This amendment allows the Government to apply to the High Court to have the assets of suspected human rights violators frozen. This leaves the United Kingdom lacking a provision for travel bans and explicit naming procedures.

Under the Immigration Rules as presently constituted, the Home Secretary has a personal, non-statutory power to issue travel bans to individuals on the basis that their exclusion from the United Kingdom is conducive to the public good. Section 3(5)(a) of the Immigration Act 1971 also confers upon the Home Secretary discretionary power to deport anyone if it is deemed to be,

“conducive to the public good”.

I would like us to ask ourselves how often those powers have been used against human rights abusers. However, the current powers allow the Home Secretary to prevent the names of those who have been banned being published. The existence of a specific statutory provision—that is what is being sought here—aimed at sanctioning those involved in human rights abuses will both focus the attention of those applying that law and introduce greater transparency into the exercise of the power to impose visa bans.

The Foreign Affairs Committee published a report in 2011 on the FCO’s human rights work which asserted the value of publicising the names of those who are denied visas to enter the United Kingdom as a means of drawing attention to the UK’s determination to uphold high standards of human rights. Only a few days ago in this Chamber, I participated in a debate about human rights subsequent to Brexit, and we were given guarantees by the Minister from the Dispatch Box that human rights were a central consideration of this Government. Here is a way in which this can be expressed.

Dominic Raab, a Member of Parliament, argued cogently in a Commons debate in February 2015 that the introduction of specific statutory powers would give the public the right to know which individuals were being banned and which were not and would help travel bans act as an effective deterrent to others. We would soon see a chilling effect on the movement of people if they thought that there were going to be problems as they sought entry into this country. The Immigration Control (Gross Human Rights Abuses) Bill would introduce two missing elements of a fully fledged Magnitsky law: explicit powers to ban from the UK those responsible for, and complicit in, gross human rights violations; and transparent naming requirements for those who are banned.

Following the successful campaigns to pass Magnitsky Acts in the United States and Canada, the Russian Government have pursued William Browder through manifold routes, including abuse of Interpol’s international co-operation mechanisms by applying for Red Notice arrest warrants to secure his arrest and extradition to Russia. There have been five separate applications for Mr Browder’s arrest via these means, all of which have been rejected by Interpol.

But what this tells us is that Magnitsky laws are working. They are doing their job. That is why Russia is so determined to go after Bill Browder. One of the great complaints made about international human rights law is that it has insufficient teeth. This is how you give teeth to our international commitments. I strongly commend this Bill to the House and beg to move.

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[Baroness Kennedy of The Shaws]

I thank everyone who has participated in the debate in support of this Bill. Until the last speaker, we were united in saying that there is a need for it. This is not a question of simply protecting our borders from unpleasant persons; it is about sending a message to the world that there is no impunity for those who commit crimes of inhumanity. It is about making a statement to the world about our views with regard to human rights and those who violate them. I greatly regret that the Government do not see the potency of having such a Bill on the statute book.

I thank all those who have supported the purpose of this Bill. I feel privileged to be in this House, in particular because I have friends all around the Chamber. They sit on all the Benches and just now I can see them smiling at me, and I am lucky to have them. My friendships with people in this House are sometimes peppered with political differences on certain subjects, but we still enjoy great friendship. I want to make it known to the world that noble Lords are not speaking today because of that friendship but because one of the things we share is our concern for the rule of law and for justice. That is what has brought us all together today in support of the Bill. It is to say that justice matters and that it is important that we in the United Kingdom take a stance on human rights abuses around the world—and that, when we know they have happened, we should refuse entry to those who have been party to such egregious crimes. It is shaming on the Government that they are not prepared to take steps on this.

Of course I anticipated that it would be said that powers are already available to the Home Secretary, but we know that they are not being used. The noble Lord, Lord Trimble, referred to the failures on that front. It is not enough to talk about the fact that we are now introducing legislation to deal with those who commit fraud and so on because here we are talking about people who are slaughtering others and are prepared to kill in order to maintain their power. They are people who are prepared to rape and to sanction rape by others. That is what is so disgraceful about the failure of the Government to make clear to the world what the message is by having legislation of this kind.

I was very interested to hear about the kleptocracy tour described by the noble Baroness, Lady Falkner. Perhaps the noble Baroness will have to organise a bus to take people from this House around London in order to point out how dark money is infecting our city and our nation. People are coming here because they know that they can enjoy impunity for the crimes they have committed. I say to the Government that we should be ashamed; I say, “Poor show, Government, that you are not prepared to take this step”.

As for the business of publishing names, the argument for doing so is that those who have not been named would be put on alert. They would think immediately, “Am I going to be on that list tomorrow—or in a month’s time?”. It is unpersuasive to say that that is a reason for not publishing. We are providing cover for people with whom unfortunately we do business for reasons that are still not good enough. They have disgraceful pasts that they are covering up.

I thank the noble and learned Lord, Lord Brown, who is a truly great lawyer, for his intervention. He raised the important issue of the standard of proof. What I referred to in my speech was that there is an independent United Nations panel that looks at those who have committed crimes and applies careful standards. Drawing up a list of those the panel considers have committed human rights breaches is not done merely on suspicion. We can also look to the International Criminal Court, which again draws up lists as part of its investigations. There are ways of doing this, but I accept that if, as I hope, we take the Bill further, we can look at ways to perfect this through amendments tabled in Committee.

I want to make it very clear to the Government that there is no suggestion of this being used against all citizens of a country because it falsely claims to be a democracy. That is not the purpose of the Bill. The purpose is to deal with the leadership in these places—people who sanction this kind of egregious crime. It in no way deals with people who are victims because they happen to live in a country where the leadership behaves in such terrible ways.

Mention was made by the noble and learned Lord, Lord Brown, of the possibility of something being done in the Sanctions and Anti-Money Laundering Bill. I would urge that on the Government; it may be that they can find some part of that Bill that could be expanded to cover this—although I suspect that there will be unwillingness to do so. I have absolutely no doubt that this Bill can be perfected in Committee, but the purpose today is to say that there should be a Bill—one that makes it very clear to the world that we support the Magnitsky Acts that have come into being in the United States and Canada—not countries that casually introduce such legislation. The world needs to take steps to prevent such impunity.

Finally, I want to reiterate what was said by the noble Lord, Lord Trimble: we have seen that this is working. It has been a long time in coming. Over the years, we have talked about the ways in which international law can be an expression of good will but is often unenforceable; it is often impossible to implement our good intentions. This Bill is a way of doing that and a way of sending a message around the world: “You cannot come here. You will not be able to come here. You will not be able to go to the United States or Canada or Latvia or other nations that have signed up to this”. I think that it will spread. We want to be in there at the beginning, surely.

I thank noble Lords for supporting me and I beg to move.

Bill read a second time and committed to a Committee of the Whole House.

Brexit: Acquired Rights (EUC Report)

Baroness Kennedy of Shaws Excerpts

Tuesday 4th July 2017 Lords Chamber

Moved by

[Baroness Kennedy of The Shaws]

To move that this House takes note of the Report from the European Union Committee Brexit: acquired rights (10th Report, Session 2016–17, HL Paper 82).

[Baroness Kennedy of The Shaws (Lab)]

My Lords, in the immediate aftermath of the referendum, the European Union Justice Sub-Committee, which I chair, embarked on an inquiry into one of the most pressing issues to arise: what happens to the rights of European Union citizens who live in the UK, and what happens to the rights of UK citizens living in other parts of Europe? Being part of the European Union means that people can live, work, study and set up businesses in a member state of their choosing. Millions have chosen to do that. While the report we published did not deal with commercial rights, many of the legal principles applied as much to companies as to individuals.

Before the referendum, there was a lot of speculation and claims that people would be protected by the doctrine of acquired rights in international law, so that they could just carry on as before. This turned out to be what nowadays is called “fake news”. The evidence we heard was clear that this was a red herring and it distracted from the very real problems posed for people by our withdrawal. International law provides no meaningful protection. The committee received anguished letters from families, and it is family issues that will be most testing for the Government. This is about people and their lives. When we talk about trading, at the end of the day its purpose is to enhance lives. In the end, it is always about human beings.

We recommended that the UK Government should take unilateral action. We felt that that was the moral thing to do and that it should have been done before we ever entered into negotiations. We urged that upon the Government, but it was not accepted. The Government’s response was that this might leave at risk our citizens living in other parts of the European Union. Unfortunately, the response seemed to be, “If we can’t help everybody, we’ll just help nobody”, so it was left until now, and it is still looking very difficult to resolve.

We accepted that the much-vilified European Convention on Human Rights might provide some protection, particularly against deportation. It would also protect against loss of possessions, physical or intangible, such as commercial rights, which are currently protected by European Union law. Similarly, bilateral investment treaties might provide limited safeguards for investors from losing European Union rights, but only when to do so does not clash with European Union law.

However, it become very clear to us that the thousands of rights that derive from European Union law are simply not replicated in other instruments, and there would be a real deficit of rights without an agreement to protect. Professor Sionaidh Douglas-Scott and other very distinguished legal experts gave evidence before us that certain European Union rights could be protected only within the withdrawal agreement itself. That was the inescapable consequence of the evidence we had. The Government, it seems, are coming to agree. Any agreement on citizens’ rights will end up being binding under international law. Many of our British folk living in other parts of the European Union believe that the offer being put on the table by the European Union 27 is a more comprehensive offer, and we should listen to what they are telling us.

We recommend that the rights safeguarded in any withdrawal agreement should be frozen at the date of Brexit. We emphasised that the majority of such rights would be reciprocal, with parallel European Union rights, and it was therefore necessary that they be applied consistently with European Union rights. In other words, there would have to be a level playing field. That means that as the parallel European Union rights evolve over time, so it is likely that UK law will have to evolve with them.

The 27 are urging that the ultimate overseer should be the European Court of Justice. That is the question that we have to keep asking: who has the last word? We will come up against that question time and time again in the course of these negotiations over all manner of rights. When you have cross-border relationships—whether they are trading relationships, relationships through marriage or relationships on consumer rights—you will end up having to ask that question. Who has the last word? Who will be the ultimate arbiter?

I am not alone, nor were my colleagues on the committee, in being concerned about this matter, which seemed to be neglected by having a line drawn through any possibility of our having anything to do with a supranational court. We made it clear that a mechanism could be developed to ensure that UK law takes account of developments in EU law in the jurisprudence of the European Court of Justice, and that EU law takes account of relevant developments in UK law in the same way, so that it is reciprocal. That is what happens in the EEA under EFTA. Some sort of court has to exist. The EU 27 have made their offer, and the Government have now made a corresponding offer, but questions remain to be settled. There are serious and important questions.

I remind this House of something that has come from the Bar Council. Lawyers who have been looking at this emphasise:

“Rights are not worth much if they cannot be enforced”.


So the issue is very much about enforcement. They state:

“Clear and useable enforcement mechanisms are essential to the rule of law. Certainty is currently provided by the interpretive role of the”,


European Court of Justice,

“and to reject this would deprive EU citizens in the UK of that safeguard”.

They point out that you have to deal with the problem that can arise when someone says, “The courts in Britain are not protecting my rights as a European”, and that there may have to be resolution somewhere else. In the same way, a British person living in Spain may feel that the Spanish courts are not doing the right thing by them with regard to their rights and will want to go to a court beyond Spain—perhaps to the European Court or some such court, depending on what we arrange. The Government have to be mindful of that.

A number of questions still arise and I ask the Minister to respond to them. Is settled status for life? That is a question being asked by Europeans in Britain and our citizens living in other parts of Europe. Will European Union nationals lose their right to vote? If they are given settled status surely they should be allowed to vote, not only in local and European elections but also in our general elections if they live here and pay taxes. Will they be able to bring in spouses without meeting the UK’s minimum income threshold requirement? Will European Union citizens have the same rights as UK citizens, where families, including parents, dependants, adults and children, can move from one country to another? As my mother could come down from Scotland and live with me, or children I may have had before who lived in Scotland or in Ireland could come and join us, can a settled French family bring over their granny to join them? Could a woman who has remarried in Britain and has been living here for 15 years bring over her 17 year-old son she had previously when she was living in Germany with her German first husband to join her here at this stage? If he was shared between the two of them over the years and spent his summer vacations here, could he come to university here? What are the family reunification rights?

The same question will be raised by British people who live in other parts of Europe. Will they have reunification rights with regard to family? What happens to EU nationals married to Britons who are not exercising EU treaty rights, such as housewives who are not working, not setting up companies, but doing important work in rearing children? Will they get settled status too or will they have to apply under UK immigration rules, requiring therefore another five years’ spouse status before qualifying for indefinite leave to remain? Will rights to pensions, healthcare, work, rights of establishment and mutual recognition of qualifications all be safeguarded?

Can we ring-fence a definitive agreement soon in advance of other parts of our negotiations? We keep hearing that it is not over until it is over but some people want it to be over and want to know now what the position will be because uncertainty is so painful. These are deeply serious matters because, in the end, it is about human lives.

The issues of contention will be resolved initially by immigration departments—we know this—but will end up being dealt with by poorly trained officials making significant decisions against tight deadlines, and the risk of endless litigation is high. More than 3 million people in Britain alone will be making applications for this special status. What will we do about administering those applications in a fair and just way? Our relations with the rest of Europe and our neighbours abroad will be deeply damaged if we get this wrong. Getting it right from the outset is vital and it should be done in a spirit of generosity, not pettifogging strictures to keep people out. I urge the Government to be welcoming and to make any system simple and clear, and to give people certainty soon.

I hope the Government will welcome our report. We have received no response from them and I am looking forward to what the Minister will say tonight.

--- Later in debate ---

[Baroness Williams of Trafford]

I will.

[Baroness Kennedy of The Shaws]

I want to ask the noble Baroness a similar question. I raised an issue that arose from a letter that the committee received. It involves a family where an Englishman is married to an Italian wife, his wife is an only child and her parents are elderly and in Italy. It is expected that, when one of her parents—the in-laws—dies, the lone in-law is allowed to come here, but it may not be within the next two years. What happens in that situation? Will it be possible for an in-law left alone in another country in Europe to be able to join their daughter or son to live here?

[Lord Kennedy of Southwark]

Can I possibly ask a question and then we can get it all out in one go? The noble Baroness just said that families can apply for settled status. Is applying for settled status a formality, or could it be refused?

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[Baroness Williams of Trafford]

I will write to the noble Lord on the absolute detail about whether it could be refused. I am sure there will be circumstances under which it could be refused, and I can imagine the sort of circumstances that we might be talking about. As I have said, we intend settled status to be a very simple process, literally perhaps proving, perhaps with a gas bill or a rental agreement, that you are actually here in the UK. I will write to the noble Lord on the circumstances under which it might be refused.

I was about to come on to the noble Baroness’s question about the ability of those currently resident in the UK to bring in family members after we leave the EU, such as the elderly member of that family. It is important to note that they will have the opportunity to do so either by applying under post-exit immigration arrangements for EU citizens who arrive after the specified date or by applying under the same rules as those joining British citizens. I hope that answers the question.

[Baroness Kennedy of The Shaws]

I am sorry, but I have just one more point. It is another letter from someone who came here as a European and bought a property here but because of his work is now working abroad. Is that continuing tie of owning a property in Britain enough to establish his entitlement to apply for settled status?

[Baroness Williams of Trafford]

Can I write to the noble Baroness on that as well as I do not want to give her duff information either?

The noble Baroness, Lady Ludford, asked about the income threshold to qualify for settled status. EU nationals will not have to meet the income threshold. Further details on the eligibility criteria will be set out in due course, but the policy document sets out what the essential conditions will be—an applicant who arrived before the cut-off date and has been resident for five years and has had an assessment of conduct and criminality. That goes to my point, which I will clarify with the noble Lord, about refusal of settled status.

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[Baroness Kennedy of The Shaws]

I thank everyone who has participated in this important debate. It has emphasised that this is not an easy matter and that reaching an agreement is vital because people want certainty—people from other parts of Europe who are living in this country, contributing hugely to our society and enriching our lives, and our citizens living in other parts of Europe who are enjoying and taking delight in having lives there. We owe it to all those people to resolve this matter generously and speedily, and in a way that will not be expensive but recognises that rights need courts. There is no denigration of our judges in saying that at the end of the day people will ask, “Where is there a court beyond?”, if they feel that our nation or the nation that someone is living in in Europe is not meeting their rights. I am afraid that the Government will have to give careful thought to how to resolve that very difficult issue.

I thank everyone, including the Minister, who has kindly responded to this debate.

Motion agreed.