Border Security, Asylum and Immigration Bill

Lord Jackson of Peterborough Excerpts

Committee stage
Tuesday 8th July 2025 Lords Chamber

[Lord Green of Deddington (CB)]

My Lords, I can be very concise, mainly because I agree almost entirely with everything that the noble Lord, Lord Harper, said. We should not lose sight of the fact that this whole issue is a real concern to the public. They think we are being made fools of and they are largely right. It is time that the law was tightened up and the authorities got a grip on the situation. I support the Government’s drafting and I hope it will be widely supported.

[Lord Jackson of Peterborough (Con)]

My Lords, I oppose these amendments. The noble Baroness, Lady Hamwee, was gracious in absolving me of my stupidity in jumping ahead. I misread the amendments last week, but we are now in group 2, so we can discuss mens rea.

It is quite in order for noble Lords in this House to test the efficacy and appropriateness of new offences; there is nothing wrong with that. I have read in detail the report by the Joint Committee on Human Rights, which is ably chaired by the noble Lord, Lord Alton of Liverpool, and I have even read the ILPA briefing on the Bill—which takes some doing if you come from my perspective. I concur with the pithy remarks of my noble friend Lord Harper—who has great experience as a former Immigration Minister—that one does not always take Liberty’s briefings as the true gospel.

However, the reason I oppose these amendments is that I am not convinced by the argument prayed in aid by noble Lords, even in the JCHR report. I thought the comparison on page 10 was a specious comparison of precursor offences when they were compared with terrorism offences. I did not think that was an appropriate offence to compare it with, frankly. It is quite right to test the limits of the mens rea doctrine in respect of intention, recklessness and the reverse evidential burden of proof contained within the reasonable excuse provisions. But one has to look at the real-world consequences of what would happen if we accepted these sweeping amendments in terms of the interpretation by the judiciary and others of an amended Bill with this wording in it. I used the words “well-meaning” and it is absolutely not ignoble to put forward these amendments. However, there is a degree of otherworldly naivety about the damaging implications of the Bill being amended in this way.

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[Lord German (LD)]

My Lords, what we have just heard is not unexpected. I understand that the Conservative Benches really want to stop everyone from coming across and making those dangerous crossings, which everyone would want to do, but it is quite surprising that we are debating how these matters will work between ourselves and France when the man holding the reins of the other half of this continent is in the next room to us, telling Members what he thinks on these matters. So I ask the Minister what he has heard so far about the issue of the exchange mechanism that has been trailed in our newspapers so strongly.

Secondly, I thank my noble friend Lady Hamwee for acting as what the Minister called the “super-prop” or the “super-sub” last week when some of us were away working in the Council of Europe.

On these very particular amendments, it is my reading of the report from the Joint Committee on Human Rights that these two amendments were agreed unanimously by all committee members, including the Conservatives. If that is the case, it is not just simply a matter of people saying, “We want to try and stop this happening in broader terms”, but there are Conservative members who have looked very closely at this particular part of the legislation, are trying to work out what is most appropriate and have committed themselves to it, both in this House and in the other House as well.

First of all, the noble Lord, Lord Harper, raised the issue that having to prove yourself not guilty is not something we do in this country. You have to be charged, but you do not have to go into the case from the other end of it. The issue here before us is what it will capture in that state between people who might or might not be guilty of what they are being charged with.

For example, two weeks ago, I was lucky enough to go to the northern coast of France and meet all the French authorities, from the préfecture downwards right through to on the beaches. One of the things pointed out to me was a Catholic centre where people were being helped because of normal life. They were being helped with food and trying to get appropriate clothing, and they were also being given SIM cards. If the Catholic priest who was giving out the SIM cards is going to be caught by this legislation, we ought to be very careful about the words that we use.

The change is in the words “intends that” from “knows or suspects that”. Though the cases we are going to discuss later are very proper and important offences, they are really focused on the smugglers and not the smuggled, and the smugglers getting 15 years in prison, which is the maximum sentence before us, yet the only test of getting into that process is whether somebody knows or suspects that a relevant article will be used by a person in connection to an offence.

So it is not that simple to simply say there is no link between the nature of the offence and the target for it. I am rather hoping that the Minister will tell us that this is a very tricky issue, it is something in respect of human rights that has been reflected throughout our law—international law as well as the law of our own country, both put together—and in the international conventions: not just those we were a signatory to but those we signed up to and those we created, and not just the ECHR but others as well.

[Lord Jackson of Peterborough (Con)]

Will the noble Lord give way? I am listening with great care. If I can direct him back to the issue of reverse burden of proof, he will know that this is not unusual—it is not common, but it is not unprecedented. Section 139 of the Criminal Justice Act 1988 states that, if someone is found with a blade in a public place and the prosecution proves possession, the defendant must prove they had a good reason for possessing it. The Health and Safety at Work etc. Act 1974 places a reverse burden on the defendant to prove that they took all reasonable steps to avoid the offence. These things are not unusual. For such an important public safety issue, surely the noble Lord will concede that it is not unusual or unprecedented for the Government to seek to take these matters in the legislation in the way they will.

[Baroness Hamwee (LD)]

I do not think that either of the noble Lords were in the House when we put forward the same arguments about the burden of proof regarding blades and, I think I am right in saying, chemicals which could burn and disfigure, which can also be domestic—

[Lord Jackson of Peterborough (Con)]

Acid.

[Baroness Hamwee (LD)]

I thank the noble Lord— I knew there was a word for it. We do not deny that there are examples on the statute book, but we objected to them at the time.

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I happen to think—and I think there is a common theme on many sides of this Chamber—that the courts are well equipped to assess whether someone had a legitimate reason for their actions. In practice, the burden on the defendant is only to raise an evidential basis for the excuse; it is then for the prosecution to disprove it. That is what prosecutions are about: they face defences, they have to prove that those defences are wrong, and they have to prove their case.

[Lord Jackson of Peterborough (Con)]

I will take the Minister back to the reasonable excuse in Clause 13(3). I am sure he has a view on why the wording is quite open ended. It says:

“The cases in which a person has a reasonable excuse for the purposes of subsection (2) include”—


these are the key words—

“(but are not limited to) those in which”,

et cetera, including that the organisation

“does not charge for its services”.

Without being too irreverent about this, Albanian people traffickers do not give you a standing order or a direct debit. There might be another way that a payment can be made, but that whole subsection is pretty open ended. Does he have any views on whether it might potentially be misused and abused if it remains as it is?

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[Baroness Chakrabarti (Lab)]

My Lords, I apologise for not being here for the first day in Committee. I was with colleagues as part of the UK delegation to the Council of Europe. Of course, I spoke at Second Reading.

Sadly, after the debate on the previous group, it seems that I have to declare an interest as the former director of Liberty. It is not something that I do very often but, given some of the disparaging remarks about my former employer, I thought I had better declare that as some kind of interest. Apparently, to have worked for a cross-party or non-party human rights NGO is now an issue. I should add that in my many years working at the National Council for Civil Liberties, I worked across this House and the other place, including with some very senior Conservatives, who believed very much in fundamental rights and freedoms. I guess that was then and this, unfortunately, is now.

As a preliminary point, on the previous group I was slightly flummoxed by contributions from across the Committee on the Clause 13 offence and defences. Forgive me, I have been a lawyer for only 30 years, but it is easier to prove that I was reckless in my behaviour than to prove that I had actual knowledge or suspicion. If I am right about that, I am flummoxed by every contribution from around the Committee on whether it should be knowledge and suspicion or intention and recklessness—but that was the previous group.

In relation to this group, I have to commend the noble Lord, Lord Alton, and his committee and, indeed, the noble Baroness, Lady Hamwee, for amendments that square very well with—I will not call it a platitude—the caveat that the noble Lord, Lord Harper, gave to his other comments: that he does care about genuine refugees. If I am to take that as a real commitment to genuine refugees who are not abusing or playing any system but are in peril in their home country and fleeing persecution, if that is the commitment—I know it is the commitment from my noble friend the Minister—then I suggest that none of the amendments in this group contradicts the intention that we are going for the smugglers, going for the traffickers, going for the people who are making money out of people’s desperation, but not going for innocents.

Of course, the nature of protecting genuine refugees is that you do not know who will turn out to be a convention refugee until you process them. That means that we have to be a little bit careful about how we go after the people who are coming before we have actually considered their case. To go back to various comments that have been made about the historic origins of the refugee convention, I just remind the Committee that this was the world’s apology for the Holocaust, and that people who fled the Nazis in the 1930s often had to do so by irregular and clandestine means. For those who need a reminder, I recommend “Julia”, the 1977 Fred Zinnemann film starring Jane Fonda and Vanessa Redgrave. It would not be a bad thing for every participant in this Committee to revisit that Oscar-winning film, perhaps over the recess, before coming back for many more hours of deliberation on this Bill.

The reason that these amendments are good ones that do not undermine the intention of the Bill but actually speak, to some extent, to the slightly confusing debate on the previous group is, first, that they make it clear that we are going after the people who are monetising this desperation, perpetrating the evil trade and putting people’s lives at risk in the English Channel. The amendments put that squarely into the Bill. Secondly, they refer to the refugee convention, which I know will raise some hackles on the Benches opposite. I believe it is the Government’s intention to comply with the refugee convention as well as the European Convention on Human Rights. The European Convention on Human Rights has to be dealt with on the front cover of the Bill, as per the Human Rights Act. The Human Rights Act will also be the interpretive method for looking at the Bill, but there is not anything like that for the refugee convention. What there is instead is a tradition that was begun by a previous Conservative Government in the Asylum and Immigration Appeals Act 1993. Check the date: it was a Conservative Government, if I have my history right, who introduced the principle, initially into the Immigration Rules, that the refugee convention has primacy in the context of treating refugees, because the intention of that Government, and previous Conservative Governments, was to comply not just with the European Convention on Human Rights but with the refugee convention as well.

Because we have moved towards criminalisation—not just considering claims, appeals and removals—it becomes important that the refugee convention provides a defence for various immigration offences that are subsequently created. That is why the Joint Committee on Human Rights—a wonderful institution of this Parliament—has stepped in to make sure that no prosecution or conviction under any of these offences will offend the refugee convention. I can put it no better than the noble Lord, Lord Alton, who said that we do not want to use these offences. It cannot be the Government’s intention that these offences and prosecutions are for the victims rather than the smugglers. That is the best comment I can make in support of this group.

The noble Baroness, Lady Hamwee, a long-term advocate of the most vulnerable and refugees in particular, has an obvious point about feminine hygiene products. It would be strangely gendered for the Government not to consider adding that to food, et cetera, when we are talking about human dignity. I commend all these amendments to the Committee.

[Lord Jackson of Peterborough (Con)]

My Lords, I was not intending to speak, because my noble friend Lord Harper made an excellent contribution, but I cannot let the peroration of the noble Baroness go without some response. Her arguments would carry somewhat more weight had she not resisted every attempt at a pragmatic, practical approach to the protection of our borders and the safety and security of our country—the first duty of a Government—through many pieces of legislation, not least the Rwanda Act, which many of us were involved in over the past couple of years. She and other noble Lords like her have never conceded that this is an issue. They want to go forward with this canard that the Conservative Party has in government and in opposition swung to the right—

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Lord for giving way. First, I pointed out the Asylum and Immigration Appeals Act 1993, which is Conservative legislation. I could have gone on. I know that the noble Lord thinks my peroration has been too long already, but we can compare the minutes afterwards in Hansard of how long people are banging on. I was trying to point to a long and noble tradition in his party of caring about the refugee convention and trying to do what the noble Lord, Lord Harper, suggested we must do: differentiate the genuine refugees, who need to get here and be processed and considered before you can separate the wheat from the chaff.

Secondly, the noble Lord should not let the fact that the messenger is unattractive to him be to the disadvantage of the amendments—try to ignore me and just consider the amendments in detail. I suggest that they do not offend his ambition of controlling borders or the ambition of the noble Lord, Lord Harper, of differentiating between perpetrators and gamers of the system and people who may well turn out to be genuine refugees. The noble Lord, Lord Harper, has made points about the public on many occasions and their warmth towards desperate Ukrainians, Hong Kongers and so on. Those people were rightly given safe and legal routes to the United Kingdom, in a way that Afghans, Sudanese people and others in equally dire straits were not. The drafters of the refugee convention always understood that that might happen and that some desperate people might have to flee by irregular routes. You do not know who is a refugee and who is not until you have considered their claim.

[Lord Jackson of Peterborough (Con)]

I do not deprecate the remarks of the noble Baroness. I find her always passionate and compelling, and she added greatly to the strength, colour and nuance of the debates we had over the last two years on the Rwanda Bill and other legislation, so I am not shooting the messenger.

The noble Baroness pre-empts my comments. I was going to say that my party has had an outward-looking, internationalist, liberal approach to bringing into this country the brightest and the best. Going way back, from the Ugandan refugees who were expelled by Idi Amin, and the Asian folk from India and the Indian subcontinent, to, as the noble Baroness says, Syrians, Ukrainians and Hong Kongers, we have a very proud record of welcoming people from different cultures. However, it is important to make the point that it is not strange that nine countries in the European Union are demanding that the provisions of the European Convention on Human Rights are revisited because they are simply not working and are not equal to the geopolitical challenges alluded to by the noble Lord, Lord Alton of Liverpool, around the mass movement of people.

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[Baroness Chakrabarti (Lab)]

I am sorry to interrupt the noble Lord again. I want to move away from me and go back to the amendment. I suggest to the noble Lord, Lord Jackson of Peterborough, that the amendments make that distinction, because the refugee convention will be of no avail as a defence to anyone who does not turn out to be a refugee. The convention’s principles are non-penalisation, non-discrimination and non-refoulement. Whatever the other defects, the Committee ought to be able to unite around those principles.

[Lord Jackson of Peterborough (Con)]

Before I look at the specific critique of the amendments put forward, I take the comments by the noble Baroness on face value. However, I know that, when my party were in government, those on the other side, the Liberal Democrats and many Cross-Benchers took issue with age-verification tests and other attempts by the state to determine the bona fides of people with respect to their age and background, and whether they were truly subject to oppression, mistreatment, or the misuse of the criminal system in their countries. At every step, those were opposed. It has proven difficult for us to focus on those who are genuinely in need of our support, as my noble friend Lord Harper said.

By the way, I support the very sensible amendment tabled by the noble Baroness, Lady Hamwee, about dignity products. Any sensible, sentient, caring, compassionate person would do so.

I end my slightly odd preface to these comments by saying that we have a responsibility. We are not elected, but we should nevertheless reflect the very serious and significant concern among the public about these issues. Many people would be horrified by this otherworldly obsession with the minutiae of amendments when we have a national crisis affecting our borders and the safety and security of our country. We have a responsibility to address that.

[Baroness Chakrabarti (Lab)]

I am sorry, but this is Committee, where we look at the minutiae of amendments. I plead with the noble Lord, Lord Jackson, to look at the amendments in this group and at my suggestion that they do not offend his ambition to control the borders and to differentiate between those gaming the system or monetising an evil trade and those victims of trafficking and potentially genuine refugees. It is not about what I have said in the past, who I am or the NGOs that the noble Lord does not like; it is about the specific amendments, because this is Committee in the House of Lords.

[Lord Jackson of Peterborough (Con)]

I am aware of that. I am merely drawing to your Lordships’ attention the fact that there will be real-world consequences from the interpretation of the legislation when it finally gets Royal Assent and becomes an Act.

As has been said by my noble friend Lord Harper, there are other individual groups who have a vested interest—perhaps for the right reasons—to not consider the security and safety of our border. They are perfectly entitled to believe in there being no borders and in a very loose and liberal interpretation of immigration policy. However, we must be careful when we legislate that we do not allow those people—who are massively out of step with the views of most of the public—to put in the Bill, through advocacy, something that will not be in the long-term best interest.

I cannot add anything more to the excellent points on Amendment 33 made by my noble friend. I oppose Amendments 35 and 44. Although it looks on the face of it beguilingly attractive that we should not be in breach of international treaty obligations which we have signed, my concern is that this is a moveable feast. To put in the Bill quite a prescriptive, tight and draconian interpretation of an international regime which may well change over the next few years is not appropriate. I have no doubt that the 1951 refugee convention will evolve—for the better, I hope—and that certainly the ECHR will be reviewed, as it is not only people in the UK who are concerned about it. The amendments are well meant and make a strong argument, but they would tie the hands of our own judiciary and Ministers.

[Lord Alton of Liverpool (CB)]

I do not wish to detain the Committee now, but will the noble Lord, at some point between now and Report, at least have a conversation with me about what he thinks is draconian in these international conventions to which we are already a signatory, and which these amendments will simply ensure that we act upon in the way that is suggested in things that we are already signed up to?

[Lord Jackson of Peterborough (Con)]

I am always more than happy to have a conversation with my friend the noble Lord. However, as the Minister himself said not that long ago, the Bill in its entirety is compliant with the current legislation in respect of the Human Rights Act and the European Court of Human Rights. It would be otiose, and at the same time restrictive, to put this stand-alone amendment in the Bill. It would encourage what I have previously described as judicial activism, which we have seen in the immigration tribunal and has been featured in the Daily Telegraph quite regularly. I do not think that is helpful; it would undermine the faith and trust that people have in the criminal justice system. For that reason, I do not think the Bill should be amended in the way that the noble Lord proposes, but I am always happy to be persuaded by him.

[Lord Green of Deddington (CB)]

Noble Lords will be aware that I have been concerned with immigration matters for about 25 years. I have not paid much attention to asylum because the numbers were much smaller, but they are now significantly greater. I repeat my warning that we really need to have our feet on the ground if we are going to deal with the scale of what is now in front of us. The public need to know that their concerns are understood and are being acted on. That is not yet the case and it needs to be done.

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[Lord Hanson of Flint (Lab)]

I am always pleased to know what my comrades in arms in both Houses have done, and it is important that the Government reflect on all points of view. I simply make the point that there will be a response to the committee’s report prior to Report, and those nuances will be examined as part of the discussion.

The third point that the Government want to put on record—I have said this in earlier discussions—is that the United Kingdom is unequivocally committed to the European Convention on Human Rights, and the measures in the Bill support that aim and are compatible with UK human rights obligations. That leads directly to the points made by the noble Baroness, Lady Fox, and the noble Lords, Lord Harper and Lord German. Those are the three important principles: gangs are the target; we will respond to the report; and we believe we are compliant.

[Lord Jackson of Peterborough (Con)]

I am grateful for the forbearance of the Minister. While he is in a pensive mood, will he confirm that there is a possibility, at least, that the Government’s current review of Article 8 of the European Convention on Human Rights, which was announced on 30 March, may well be concluded by the time that we get to Report or Royal Assent to this Bill, and would potentially feed into any further amendments that the Government brought forward?

[Lord Hanson of Flint (Lab)]

As the noble Lord knows, the Government are reviewing the issue of Article 8, but intend to do so in a way that examines judicial discretion on Article 8 and potentially looks at how we can improve performance on that issue. It does not mean that we will be withdrawing from Article 8, or indeed from any aspect of the convention. I think it is important that consideration is given to those issues.

If I may, I turn directly to the amendments before the Committee today. I start with Amendments 33 and 38, which seek to add the requirement that one can be prosecuted under these offences only if an individual derives financial or material benefit from engaging in the offence. These offences, as I said, target criminal gangs at the early planning stages, when financial or material gain is often not yet evident. For the very reasons that a number of noble Lords have mentioned, introducing the requirement in the clauses for gain would significantly constrain law enforcement’s ability to intervene early and disrupt organised crime groups before a crossing occurs or money changes hands. Given the complexity of cash flows in these criminal cases, it is impractical to exempt those without apparent financial or material gain, and doing so would shift the burden of enforcement to prove gain, undermining effective prosecution.

Additional amendments to this clause do not take into account the wide range of complex agreements that might be considered when engaging in these events—for example, substantial benefits in kind for engaging in the activity—and with such amendments, people would never be guilty of an offence. Again, these are complex issues, and for the very reasons that the noble Lord, Lord Deben, and the noble Lord, Lord Green, mentioned, there will be continued pressure, and it will be continually ramped up. Even now, I can update the noble Lord, Lord German, that the President of France has made reference to the fact that we need to have international co-operation in his address to both Houses a few minutes ago, and that there will again be consideration of joint action on the criminal gangs, for the very reasons that the noble Lords, Lord Deben and Lord Green of Deddington, mentioned, because it is a nationally important issue that needs to be resolved and there will be increasing pressures.

I just say to the noble Lord, Lord Alton of Liverpool, who moved the amendment, that I do not think it would be appropriate or proportionate, particularly given the life-threatening risks posed by people smuggling, for his amendments to be accepted. They would undermine the opportunity for early intervention that the offences are designed to examine and stop. Where there is evidence of involvement of organised criminal activity, where lives are endangered and where our borders are undermined, those individuals would rightly be liable for prosecution, regardless of whether financial or material gain can be demonstrated.

There are going to be pressures: the noble Lord, Lord Deben, mentioned them clearly. It is an important issue—I cede that to the noble Lord, Lord Green of Deddington. In order to deal with these issues, we need to have some potential powers of criminal action, and I am grateful for the support from the noble Lord, Lord Cameron, from the Opposition Front Bench.

Turning to Amendments 203, 35, 44 and 57, Amendment 203 would add the offences in Clauses 13, 14 and 16, as well as the offence of illegal entry under Section 24 of the Immigration Act 1971, to Section 31 of the Asylum and Immigration Act 1999. This section currently protects refugees from being punished for certain actions that they may have to take to reach the UK. Amendments 35, 44 and 57 would similarly make it difficult to prosecute an individual were they to engage in this crime and seek to claim refugee status. Those are the issues that the noble Lord, Lord Faulks, referred to, which are keen issues that the Committee needs to consider.

I just emphasise again that these offences are targeted not at refugees but at the vile people smugglers. The amendments would provide a potential defence to individuals, even if the commission of the offence had nothing to do with conduct that was necessary to arrive in the UK. As such, an individual could be absolved from all sorts of behaviour, including engaging in offences before arriving in the UK, creating a loophole for anybody who wished to commit those offences. I reassure the Committee that care has been taken by officials in the Home Office, with ministerial support, to ensure that these offences have the flexibility to target the smuggling gangs but do not unjustly impact or endanger those who are exploited by these criminal smuggling gangs.

Each clause has a non-exhaustive list of reasonable excuses, including one for those acting on behalf of an organisation that aims to assist asylum seekers and does not charge for its services, and those intending to act in the rescue of a person in danger. Indeed, Clause 15 contains a carve-out of humanitarian items that cannot be considered under Clauses 13 and 14, plus carve-outs under Clause 16 for academics, journalists, rescuers and those seeking to provide those humanitarian services that are necessary. These safeguards, when combined with investigatory discretion in prosecutions and the public interest test for charging decisions, ensure that enforcement is targeted and proportionate.