Border Security, Asylum and Immigration Bill Debate
Full Debate: Read Full DebateLord Harper
Main Page: Lord Harper (Conservative - Life peer)Department Debates - View all Lord Harper's debates with the Home Office
(1 day, 20 hours ago)
Lords ChamberMy Lords, I did two years of Roman law, which did not stick, but the mens rea in criminal law did stick. The noble Lord, Lord Alton, and I are very much on the same page here. He did not quote the rather neat line from his committee’s report: that it considers that the
“precursor offences would benefit from greater circumscription”.
I thought that was very circumspect, and rather typical of the careful language our Select Committees use.
My Amendments 32, 42 and 53 are, if you like, more instinctive and a bit more amateur; the noble Lord’s are technically better, and I am happy to support them. My amendments go to the words “suspects” and “suspicion” in Clauses 13, 14 and 16. That is a very low threshold, with the burden being on the person charged to show beyond all reasonable doubt that they had a reasonable excuse. I looked up the definition, and the Oxford English Dictionary defines to “suspect” as to
“imagine … on slight or no evidence”,
and
“to believe or fancy to be guilty … with insufficient proof or knowledge”.
The noble Lord, Lord Jackson, on the first day in Committee, working from a superseded group of amendments—although it was not his fault—described all the amendments in the group, which included these, as being “well meaning”. I choose to take that as a compliment, although I am not sure that it was intended quite directly as one. He said that they would
“significantly change the burden of proof in respect of evidence”.—[Official Report, 26/6/2025; col. 447.]
Exactly, and that is the point. These are criminal offences with substantial penalties, and that should require a high burden of proof. I am very uneasy that, in the circumstances, a term that I could describe as casual does not require much from the prosecution. We will come to the content later, but I will raise this point whatever the content of the offence.
My Lords, I listened very carefully to the noble Lord, Lord Alton, and have a great deal of respect for the side of the argument he is coming from. But the piece missing from his argument, and from that of the noble Baroness, Lady Hamwee, is the concept of deterrence.
What the Government are trying to do, as far as I understand it—the Minister will correct me if I have got this wrong—is to put in place a framework that actually stops the organised criminal groups, as well as those who pay them and those who help facilitate that immigration crime. The intention is to stop them doing these things in the first place, and there is a balance to strike between the criminal law regime you put in place and the penalties. It needs to be sufficiently tough that you actually deter people in the first place.
The Joint Committee’s report says that the
“scope is broad, the thresholds are low, and the penalties are high”.
That is correct, but that is because the Government are trying, I think—and if so, I support them—to set those penalties so that people are deterred from trying to cross the channel. Let us remind ourselves that they are doing so from a safe country. They are not fleeing persecution in France; they are already in a safe European country. They may have been fleeing persecution in the country from which they originally came, but they are now in a safe European country. Of course, we also know that a lot of the people undertaking these journeys are not fleeing persecution at all; they are travelling, perfectly understandably, for economic reasons, but those are not reasons we should allow.
Is it not sensible to look at it from the point of view of the person who may be undertaking the action? If there is to be deterrence, you have to look at it from that point of view. Whatever your objective, you have to look at it from the point of view of the person who may be affected; otherwise, you cannot assess whether there is a deterrent effect. Does the noble Lord think that people who reach the northern shores of Europe are as aware of the detail of legislation as his argument would require them to be?
I shall address both the points the noble Baroness has made. On the first, in one sense I am very much looking at it from the point of view of the participants. I want them to be clear that carrying out that particular set of actions would indeed be an offence with a significant penalty, because I want them to then conclude that they do not want to do that and do not want to cross the channel to the United Kingdom from the safe country in which they currently reside. That is the point of the legislation.
On the second point, I am clear, having had some experience of running the immigration regime, and particularly of the development of technology, that the noble Baroness will find that most of the people concerned have mobile telephones and are very well aware of what is going on. There are many groups out there that provide detailed information to migrants about the law and those who can facilitate their being smuggled into the United Kingdom. They are very well aware of changes we make and of the legal position. We were very well aware—I am saying this only because it has just occurred to me—that in the run-up to the election, lots of communications were being made with people in northern France about the likely outcome of that election and whether they should stay put or make the crossing to the United Kingdom. They are very well aware of what is going on, and that is very relevant.
The example that Liberty gave—the committee did not invent it—is built on a statement by the committee that:
“There is no express distinction in clause 16 between those who engage in such conduct as smugglers, and those who engage in such conduct as asylum seekers, victims of modern slavery, or persons (including children) who may be coerced into carrying items such as phones”.
I am sure that, with his experience, the noble Lord will accept that that is the case. It is about trying to find a balance, so that we can deal with those making money from creating the circumstances to smuggle people in and out of this country and those who are genuine, including children like those whom the committee describes.
The noble Lord makes half a good point. I agree with him on people who are victims of modern slavery. I think my noble friend Lady May will speak to some amendments on that in later groups.
I am sorry if this disappoints noble Lords, but the fact that the example in the report was given by Liberty does not strengthen the case, in my humble opinion, but somewhat lessens it. When I was Immigration Minister, Liberty spent most of its time trying to undermine our immigration legislation and argued for not protecting our borders. It failed to understand, importantly, that if the British public do not think that we have a robust immigration and asylum system then they will become increasingly intolerant of protecting people whom I believe should be protected. You command wide public support for people genuinely fleeing persecution, for whom we should provide refuge, by being clear that we have the ability to stop those who are not entitled to that protection coming to our country and making a mockery of our system. Organisations in favour of our looking after genuine asylum seekers and people who would meet the test of being a refugee should sometimes reflect that being uncritical, as I am afraid many of them are, about those people attempting to come to the United Kingdom damages the public’s view and our ability to have a system that genuinely helps those who need it, as everyone then gets swept up because the system is not working.
Finally, I may have misunderstood the noble Baroness—I am very happy to take an intervention if I have it wrong—but, on her amendments probing the removal of the defence, she said that she wanted the prosecution to have to make the argument. She said that the current drafting means that people would have to prove their defence beyond a reasonable doubt. That is not my understanding of how this works. It is for the prosecution to prove beyond a reasonable doubt that somebody is guilty of an offence and the legislation, as drafted, provides that there are defences that people can offer as to why they may have conducted themselves in a certain way. Unless I have misunderstood something very badly, that does not require the person to prove their defence beyond a reasonable doubt—all they have to do is, in setting out the defence, raise at least a reasonable doubt with the court that they were not guilty of the offence. That seems the right place to have the test in our criminal justice system. As currently drafted, the legislation does not have the effect that she thinks it does.
We debated the reverse burden of proof on the first day in Committee. I certainly do not take it from any of the briefings I have had, or from previous debates on the reverse burden of proof in other Bills, that it is as the noble Lord described it. As I understand it, you are charged and then you have to put forward a defence if you believe you have a reasonable excuse—which you have if there is sufficient evidence of the matter to raise an issue and the contrary is not proved beyond reasonable doubt. It therefore throws the “not proved beyond reasonable doubt” on to the defence. Presumably the CPS, in the usual way, would have to believe that the public interest test is met and so on, but it upends the normal way that we do things.
I am grateful for that explanation. As I explained to the Committee, I could not be here on the first day but I have read through the debate and I am afraid I did not agree with that then either. I just do not buy that that is what this does. The prosecution has to prove beyond a reasonable doubt that somebody is guilty of the offence. In the legislation as drafted by the Government, somebody can offer a defence and all they have to do for that defence to be successful is create a reasonable doubt in the minds of the jury. That does not reverse the burden of proof at all.
To pick up on the point in the amendment about changing “knows or suspects” to “intends that, or is reckless”, if you know or suspect something untoward is going to take place, that is a reasonably decent idea that someone should not really be doing it. If I know or suspect someone is going to commit crime, it is probably not very wise if I provide them with equipment that would enable them to commit that crime. I do not really see why I would want that test to be much higher. Let us remember that we are not trying to criminalise people who are thinking about doing this; we are trying to say to them, “If you do this, you will be committing a criminal offence and we’d like you not to do it”. That is the purpose of this. Ministers would be delighted if they did not have to prosecute anybody—certainly none of the people contemplating crossing the channel. They want to put in place a deterrent regime that stops them doing it. That is the objective of the legislation. Weakening it would just remove that deterrent effect and we would get back to the position in which we do not have control of our borders, significant numbers of people cross the channel and undertake unsafe journeys, and the British people have no confidence in our immigration and asylum system, which would damage it for the legitimate refugees for whom we want to provide proper protection. We can only do that if there is a system that commands public confidence.
If I have understood what the Government intend to do, I respectfully suggest that the Committee should not support the amendments tabled by noble Lord and noble Baroness. We should stick with the wording in the Bill.
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.
I think the answer is related to the nature of the offence which is before us. An offence which is punishable by a 15-year maximum jail sentence is a very serious and big crime to have committed. To put it simply, the suspicion threshold is seldom applied in our criminal law because such a low threshold —the noble Lord was saying that there are examples—is a disproportionate response to where someone has not been intending to commit a crime and with such a disproportionate sense of what harm they might be doing. The balance between the nature of the offence and the nature of the judgment which creates that offence is what is disproportionate.
In this discussion about reverse burden of proof, something is being missed here, which is why the knife example the noble Lord gave was not a good one. There are two parts to the test in Clause 13, which is that you have to have supplied the article but also have to know or suspect the use to which it is going to be put. So it is not just enough for somebody to show that you did the thing; the prosecution has to prove that you knew or suspected something as well. So that is not a good example, and therefore it does not flip the burden of proof around. It still lies with the prosecution.
I did not use the example of a knife. I can refer the Member to the Hansard of the previous day in Committee, which I have already apologised for not being at it because I was working with colleagues on immigration matters in another parliament at which this Parliament is represented. It would be unwise to try and deal with arguments that we had last week, of which I was not a part, but I simply say that the relationship between the offence in this case and the threshold which is being put before it is not significant. I suspect that we will treat and think about this throughout the course of the debate on the whole Bill today when we relate ourselves to the fact that this is meant to be aimed at the smugglers.
One of the things in common to all the people on the north coast of France, who represent so many different parts of the structure that is trying to stop the people taking these dangerous routes, was that they were concentrating on the smugglers. Everything was determined in terms of how they could get at the smugglers, and protecting human life and being humane in what they do as well.
The challenge in the Bill as we go through, and to the Minister, who I hope will give me a hopeful reply on what the man in the next room is saying, is the fact that this is a distinction between making very powerful offences for challenging those who are guilty of this horrible crime of taking people in terrible conditions on what are very dangerous routes indeed.
I have just one final point about the messages which smugglers send to the people who are going to be smuggled. I am sure they will not be saying, “You’d better be careful: the British are changing their laws in these directions”. As we were told by those who intercept their telephones in France, it is much more about where they should go and what they should avoid going to, what they should avoid doing and what they should do in terms of getting their journey. That is really the whole challenge from the smugglers. I welcome the response from the JCHR on the reason why, unanimously, it posed and passed these resolutions.
My Lords, I am extremely grateful to the Minister for the way in which he has dealt with this group of amendments and for the thorough response he has given to your Lordships in Committee this afternoon. For the avoidance of doubt, I reiterate that the Joint Committee on Human Rights welcomes the overall aims of the Bill—to deter organised crime and prevent the loss of life at sea. It is right that the Government do all they can to ensure there is a legislative framework in place to help eradicate this dangerous criminality. All of us who have spoken in the debate today are agreed about that.
The issue comes down to one of judgment about whether it is preventive, whether it is a deterrent and whether it will really make any difference to those who will anyway try to break these laws. Are we doing the right things to combat this criminality? I do not know all the answers to that any more than the Joint Committee on Human Rights does, but I am grateful for what the Minister said about the importance of the report the committee produced and many of the questions we have rightly raised.
In parentheses, I am glad that organisations such as Liberty take these issues as seriously as they do. They gave very valuable evidence to the committee during its inquiry. You do not have to always agree with the positions of NGOs or groups to know that they are part of the civic response to issues of this kind. We are very fortunate to have such organisations in our country.
My Lords, if the noble Lord would give way on a point of agreement, I would be grateful to him. To be clear, I am also grateful that organisations such as Liberty exist and that they have views on things—I just do not agree with them. I too am very grateful that we live in a country where such organisations exist and have contrary views. On that point, we are in complete agreement.
I was about to say that I am grateful to the noble Lord, Lord Harper, for the other points he made but, yes, we are agreed about that too. I thank his noble friend, the noble Lord, Lord Jackson, and, on the Front Bench, the noble Lord, Lord Cameron, for the way in which they put their arguments this afternoon. I was not surprised by those arguments, which were put quite eloquently in our committee, incidentally, as some here will almost certainly remember, by the noble Lord, Lord Murray of Blidworth, who was of course a Minister in the last Government. We can disagree about these things without having to fall out over it.
I am grateful to my noble friend Lord Green. We do not agree about many of these questions, but we know there is a public conviction that wants something done about illegality. That is why I argue for safe and legal routes, which my noble friend and I disagree on. We have to find other ways forward of tackling the root cause. I can sound like a broken record about this, but there are 122 million displaced people in the world today and that has doubled in the last decade. If we do not deal with the root causes, we will go on introducing Bills such as this indefinitely, ad nauseam, and will still not get to the root of dealing with the problem.
The noble Baroness, Lady Hamwee, presented the arguments perfectly as she always does. I strongly agree with her remark that we are taking these actions on slight or no evidence. She said that it does not require much for a prosecution. We must not emasculate our laws or commitments to things such as the refugee convention to try to tackle something we all know needs to be tackled; it is a question of striking the right balance.
I have listened to what the Minister has said in Committee this afternoon. He is right that we should all reflect on this. I look forward to seeing what he has to say to the Joint Committee when he publishes his response. For now, I beg leave to withdraw the amendment.
I thank the noble Lord, Lord Alton, and the committee for the very thorough discussion they have had on the issues in the amendments. I have three points to make on what the noble Lord said. He will be pleased, I hope, that on at least one of them I am in some measure of agreement with him.
I have some measure of agreement with the amendments that talk about those who have been trafficked. There is quite an important language point here on trafficking and smuggling. I make a distinction between those who have chosen to pay people smugglers to facilitate their journey across the channel and entry into the United Kingdom and those who have been forced to do so against their will. I have more sympathy for the aspect the noble Lord spoke about—where they are not party to their trafficking. I think the use of “trafficking” in this case is very important. There is a distinction, and I am more sympathetic to that.
As the amendments are currently drafted, they would sweep up a number of conventions. I am just about to move on to the bit where I part company with the noble Lord. If he—or the Minister—were to come back later in the Bill with something to tighten up the protections for those who have been trafficked, that would be welcome.
Where I part company with the noble Lord—there has been extensive discussion and, to be fair to the Joint Committee, it acknowledges that there are different views on this—is on Article 31 of the refugee convention. It protects refugees who come directly from the state where they face persecution. There is a very extensive discussion in the Joint Committee’s report on what coming directly means and the extent to which you are allowed a stopover—brief or not. It quotes some eminent legal views that a brief stopover—in other words, in France—does not stop people coming to the United Kingdom. But it also says that that view is not universally shared. I have to say, it is not a view I share.
I think it is one of the reasons the public find this issue so troubling. I do not think the public have a problem with people who come directly from a state in which they are fleeing persecution and we give them support. I will cover two examples where I accept there were safe and legal routes. When I was a Member of Parliament, literally nobody in my former constituency had a problem with the route we created to protect those fleeing from Ukraine. Not a single person wrote to me complaining about that, because people saw that they were coming directly from a country that was at war and had been invaded. We created a route, and they supported that. Similarly, we had a scheme which enabled people, who we had a historical obligation to, fleeing the communist regime in Hong Kong to come to the United Kingdom.
This is a problem because you have people in France who have come through a number—not just one—of European countries across land. They have entered the European Union in Greece and have come through a number of safe countries, spend quite a bit of time in France, then make a journey to the United Kingdom. I think a lot of people think that is not the situation envisaged by the refugee convention. They feel that that is our country being taken advantage of, which is what causes this pushback. That is what the Bill is trying to stop and there is a legitimate debate about that.
It may be that we need to have a sensible international discussion about whether the 1951 convention is fit for purpose in the circumstances the noble Lord set out, where there are 120 million or so people who are refugees. They cannot all be accommodated in countries such as the United Kingdom. If we were to try to do that, we would find no support among the public and we would stop people who had a legitimate reason to be here.
There is one part of the reasonable defence thing here where I think that the Government are perhaps being a little too generous. There are people who do not charge for their services who are genuinely well meaning; there are other people who fundamentally do not agree with having borders or Immigration Rules and sticking to them. The rules in the Bill are a little too generous. They do not have to be part of smuggling gangs but those organisations that are set up in France to make it easier for people to make those journeys should not be let off any culpability in this, whether or not they are charging for their services. If you know that people are making journeys that are unlawful and dangerous, and if you are helping people to do that, we should try to deter you. There is a legitimate argument about whether the Bill gets everything right, and people may argue that the penalties are too harsh or that this is not the right way in which to do it. But I think that there should be some sanctions.