House of Lords
Tuesday 8 February 2022
Prayers—read by the Lord Bishop of Chichester.
The following Acts were given Royal Assent:
Leasehold Reform (Ground Rent) Act,
Northern Ireland (Ministers, Elections and Petitions of Concern) Act.
My Lords, the EPSRC has committed £281 million to research grants for mathematical sciences between April 2015 and September 2021. To further support our world-leading mathematicians, UKRI has awarded around £104 million in additional funding over and above EPSRC’s core mathematical sciences theme budget, in line with the Government’s announcement in January 2020. Research England notionally allocated £55.2 million of mainstream quality-related research funding for mathematical sciences to higher education providers in England for the academic year 2021.
I thank the Minister for his reply and his acknowledgement of our world-leading mathematicians, but would he agree that, to be a world-leader in mathematical sciences, we also have to make greater efforts to encourage girls and young women to become mathematicians and do more to take advantage of all the talent that is available? Will the Minister indicate what steps the Government are taking to this end?
I completely agree with the noble Lord, who I know has long advocated the importance of mathematics study. I point him towards the advanced mathematics support programme, which has a specific focus to get more students participating in A-level core maths. It works with schools and colleges to raise awareness of progression to mathematics at university. As I am sure the noble Lord is aware, there is also the national network of maths hubs to help local schools improve the quality of their mathematics teaching. The most recent Programme for International Student Assessment results show that England outperformed on the OECD averages for reading, maths and science.
My Lords, pure maths is becoming ever more significant in the world of digital research. Will the Government now make mathematical science a distinct research field, no longer subordinated within engineering and the physical sciences, where it still lingers under the outdated Science and Technology Act 1965? Surely, it is time to move on.
I confess that I am not familiar with that legislation but I thank the noble and gallant Lord for his update. We have an excellent record on mathematics tuition and one of the best records in the world on advanced research papers, as shown by the number that have originated in the UK. It is an important area and we are doing well, but I am sure that we could always do better.
My Lords, leading on from the Question asked by the noble Lord, Lord Davies, the leading figures in four mathematical societies are all women: the president of the London Mathematical Society, the vice-president of the Edinburgh Mathematical Society, the chair of the Centre for Mathematical Sciences and the president—and three of the four vice-presidents —of the Royal Statistical Society. As the noble Lord says, however, this is not reflected in the number of female applicants across A-level and degree level. Maths should be fun. What are the Government doing to make it fun for women and girls—and, indeed, for boys and men too?
I think boys like fun as much as girls do—sometimes even together. I am delighted to hear about all the excellent leading women who are in top-level positions. We, as the males in this world, will clearly have to do better to compete with their excellent record.
My Lords, the demise of mathematics in British universities is a direct consequence, albeit inadvertent, of the Government’s policies. The Government have allowed universities to compete for students without limit in pursuit of enhanced student appreciation, which can affect student recruitment. In order to accommodate students of lesser academic ability, the universities have relieved many of their courses of the burden of mathematics. This is damaging our prospects as a technological nation. Have the Government envisaged any means of limiting this harm?
I am afraid that I just do not recognise the picture the noble Lord is painting. The UK is a world leader in mathematical science and British mathematicians publish a large volume of highly regarded work. We have the fifth largest share of publications in the world. When looking at the top 1% of the most cited publications, UK mathematicians are responsible for the third largest share. I am sure we could always do more and better, but we have an excellent record.
My Lords, long ago I studied maths and further maths at A-level, and it was fun. Now, sadly, I struggle even to master my grandchildren’s GCSE papers, but I recall enough of my time in mathematics to understand the supreme value of pure maths. Without Newton we could not have landed on the moon. Without Turing we would not have smart- phones. Is the Minister aware of the disquiet in the maths community not only at the overall funding for mathematical sciences but at the insufficient investment in fundamental theoretical mathematics research? Will the Minister agree to consider if that really is the case?
Like the noble Lord, I did mathematics at A-level, but an almost equally long time ago and I have forgotten most of it now. He makes a very good point. We have an excellent record of investment in mathematics but I will take his remarks back to the department and see if we can do better.
My Lords, if we are really serious about raising mathematical standards in the UK, has the time not come for the Government to give greater backing to the national mathematical Olympiad for pre-university students, the winners of which would go on to the International Mathematical Olympiad but also receive money for their studies?
My Lords, the UK’s position as a leader in maths would be more certain if we addressed inequalities in education at a young age. The Government should start by launching an urgent inquiry into the way A-level results were awarded last year, when we saw stark differences in the way that schools awarded top grades. As an example, one private girls’ school in north London nearly trebled its rate of A* grades awarded, so that more than 90% of its entries were assessed as A*. Pressure on teachers from senior leaders—not at all schools, but at some—to game the system is deeply troubling and unfair. This must surely be investigated in order to restore confidence in the system.
My Lords, I second exactly what the noble Lord, Lord Birt, said about the importance of fundamental maths to a range of scientific disciplines. Risk analysis, neuroscience, biology—all now require an understanding of fundamental principles. I declare an interest, as my son teaches maths to biologists in the University of Edinburgh. We are, however, in severe danger of losing top-quality mathematicians because if they move to a merchant bank, their pay is so much higher than universities are now ready to offer. Will the Government look at how they maintain top-quality mathematicians in our university system to teach the fundamental maths that we need?
Again, the noble Lord raises an important subject. We clearly want to make sure that some of the top mathematicians stay in our universities to educate the next generation of young people. I will certainly take his remarks back to the Department for Education.
My Lords, the Minister has rightly defended a reasonably good record of government funding of mathematics. I applaud that, but he is he convinced that sufficient attention is being given to biology, chemistry, physics and other scientific subjects, many of which now depend fundamentally on mathematics being inherent in their teaching?
My Lords, the Department for Transport is considering options for how best to regulate e-scooters and crack down on their illegal use. New measures being considered will be designed to create a much clearer, fit-for-purpose and fully enforceable regime for e-scooters and other micro-mobility devices. This will include robust technical standards and new rules for private and rental e-scooters.
My Lords, e-scooters have become a menace and the Government are being too slow either to ban or, as we have heard, regulate them. They are dangerous in design, using up valuable rare metals in battery manufacture, and cause growing numbers of accidents among riders, pedestrians and the disabled, and arising from scooter-induced fires. The defence of the present situation is focused on the relatively small number of regulated trial rentals, not the hundreds of thousands in private ownership with very limited legal use. Can my noble friend the Minister advise the House what early action she proposes to remedy this situation? We need to try harder.
The policy is still under development and I am grateful to my noble friend for highlighting her concerns for our consideration as we develop it going forward. It is very important that we develop a safe, proportionate and flexible regulatory regime. To do that, we need the data from the various trials which are going ahead, the future of transport regulatory call for evidence, ongoing conversations with stakeholders and more research. I reassure my noble friend that we are making progress. I recognise that there is more to be done.
Yes, I can explain that. It is illegal to use a private e-scooter on all public land. It is certainly illegal to use one on the pavement or the road. Trials have been set up around the country to develop evidence for future regulatory reform, and, within those trial areas, it is allowable to ride an e-scooter on a road or cycle path. We are working very closely with the police on enforcement; for example, the National Police Chiefs’ Council is developing a national strategy for tackling the illegal use of e-scooters. My officials are working very closely with it on that.
My Lords, there is a growing problem with e-scooters being ridden in Northern Ireland illegally and erratically. They are permitted to be driven only on private land. A freedom of information request from the Belfast Telegraph revealed that the PSNI does not hold statistics on the number of fines or cautions issued. However, there is a perception that few, if any, offenders have been prosecuted. Does the Minister agree that addressing this potentially lethal threat to personal safety should be more of a priority for police forces across the United Kingdom, including in Northern Ireland?
The noble Lord is most likely right that the PSNI does not hold data. Indeed, it is the case that police forces in England do not currently hold data relating specifically to offences by riders of e-scooters because they fall under the category of motor vehicles, and that data is therefore within that. At the moment the Home Office has no plans to introduce a requirement for forces to collect information, but, as the noble Lord set out, it is absolutely key that local police forces develop good action plans for enforcement, following the guidance that will be coming out from the National Police Chiefs’ Council.
My Lords, last year, there were 931 casualties of e-scooter accidents— 200 of those were non-riders—and there were three fatalities, yet there is absolutely no reference to e-scooters in the new Highway Code. Does this make the Government derelict in their duty to protect both riders and those who inadvertently cross their path? Does the Minister realise that, by tarrying so long on this, the Government are not leading but lagging behind the rest of the world?
I am not sure I agree that the Government are “tarrying so long”. It is really important that we get the correct balance between the enormous benefits that e-scooters can bring and safety on our roads. The noble Baroness is right to highlight some very serious safety concerns that have arisen. We are gathering the data, and we appreciate data that is coming into the department from all sorts of places and that we can subsequently analyse. But, as I said, e-scooters are not currently allowed on the roads, except in trial areas. It could become impossible to get a good legislative framework together, so, for the time being, within the trials, the e-scooter riders must comply with the rules, obviously, and take part in the training offered.
My Lords, this matter is now urgent. What deadline has the Minister set her department for producing a report? We cannot go on with uninsured riders, very often moving around drugs and so on, or otherwise just knocking down pedestrians. Can we have a deadline, please?
My department is currently considering how best to capture and publish the information that we are gathering from the trials. We hope to make progress on potential new primary powers. I cannot give my noble friend a deadline, but suffice it to say, at this stage, that we have a large team working on all the different elements to enable us to bring forward a legislative framework.
My Lords, having witnessed the increased use of e-scooters in London recently, I am irrevocably drawn to the conclusion that this is a catastrophe waiting to happen. I have witnessed almost every rule of the road being breached, including reckless and careless driving, excessive speed, lights being jumped, riding on footpaths and use without lights. Can the Minister advise the House of the number of e-scooter accidents and prosecutions that have taken place in London since e-scooters have been legalised and why was the opportunity missed to offer advice and guidance in the redraft of the Highway Code?
I might swerve the Highway Code question because I think I have gone as far as I can in the answer to the noble Baroness, Lady Randerson, but I will slightly push back on what the noble Lord is saying because it is a bit concerning. A number of people have bought these scooters and obviously we want them in due course to be able to ride them safely. We will not be able to do that for all e-scooters or, indeed, for all riders but it is clear to me that people see them as an attractive alternative mode of transport. The key here is to legislate accordingly and that is what we are very much focused on. The noble Lord asked about safety stats. I can say that for the year to June 2021, the Metropolitan Police recorded 496 incidents of injury with e-scooters versus 25,666 where it was any vehicle.
The Minister mentioned earlier that she could not give any data for police enforcement of offences. But, as my noble friend Lady Randerson said, Department for Transport statistics for the year to June 2021, collected from police forces, show that there were nearly 900 accidents, with three people killed and 253 seriously injured. If her department can get accident statistics from the police, why can it not get statistics on enforcement and offences? Is it because her department is not encouraging the police to do any enforcement?
My Lords, first, well over a million private scooters are estimated to have been purchased. Will my noble friend comment on the fiction that they are being ridden only on private land? Secondly, does she think that at point of sale, when purchases are being made, there is clarity and unambiguity that e-scooters are illegal except in trial areas or on private land rather than the reality of the chaos and catastrophe they are causing up and down the country?
The department is acutely aware of the issue of the number of private e-scooters that are potentially being ridden on public land at this moment. That is why working as quickly as possible to develop a legislative framework, which will be set out in primary legislation, in order for them to be ridden legally. However, we are also reassured that the Consumer Protection from Unfair Trading Regulations 2008 stipulate that traders must give sufficient information to consumers; they must not mislead. Ministers from my department have written to retailers many times and the last written reminder of their obligations was in December 2021.
My Lords, the Government will publish a new international development strategy this spring and it will guide our work for the coming decade and beyond. It will align our development work with the aims and objectives of the integrated review.
My Lords, in our increasingly interdependent world, successive Secretaries of State for International Development and Prime Ministers have recognised the crucial importance of conflict prevention and peacebuilding in our international development strategy. That is precisely because those who are affected by violent conflict are those who suffer from the least development and the fewest opportunities; of course, those conflicts spill over and affect us in our country too. Will the Government give a cast-iron guarantee that, in the priorities outlined in the new international development strategy, this cross-party approach will be continued and that support for conflict prevention and peacebuilding will continue to be a priority for the United Kingdom?
I absolutely can provide that guarantee. The UK is committed to working to prevent and reduce the frequency and intensity of conflict and instability, and to minimise opportunities for state and non-state actors to undermine international security. As the noble Lord said, it is absolutely in our national interest to mitigate the global impact from terrorism, serious and organised crime, and health threats, as well as regional impacts of conflict.
My Lords, when DfID existed, the department regularly published detailed country profiles setting out the purpose for delivering aid, what UK aid had achieved, what it aimed to achieve, how the UK was supporting countries to transition from aid, what the UK was getting from that aid and future spending plans. I do not believe that this information has been updated since the merger, so can my noble friend the Minister tell me whether the international development strategy will include this detailed information? If not, is he able to commit that the department will publish it in the near future?
My Lords, the most vulnerable women and children on earth live in South Sudan, where one in 10 babies die before the age of five. As the UNICEF website highlights horrifically:
“Giving birth on the floor, cutting the umbilical cord with a stick. That is the reality for some women in South Sudan.”
Any development strategy should look to increase support for those women and children, but the Government have cut support by 10% and, quite unbelievably, I understand that there are now discussions in the department to cut even further the combined health pool, which supports 80% of health provision in South Sudan. Will the Minister please intervene and make sure that these cuts do not happen, and then write to me and other noble Lords assuring us that they will not take place?
My Lords, on the issue of the geography and the example given by the noble Lord—whom I commend for being a champion for that continent—the UK remains a leader in international development in Africa. We are committed to supporting the poorest people on that continent. That will be reflected in the strategy when it is published in spring. As well as providing humanitarian support, our UK aid is helping to protect rainforests, deliver vaccines, educate girls, reduce crime and improve economic growth and development.
My Lords, between now and 2050, the population of Africa will double. One billion more people will need to be fed, to be housed and to be employed. What effect will this have on the new strategy? Will it be a priority—for example, by encouraging family spacing and discouraging adolescent childbearing?
My Lords, the Foreign Secretary has been clear—and it will be equally clear in the strategy when it is published—that we intend to restore funding for women and girls. We will continue to prioritise women and girls by supporting education systems, to empower women by strengthening sexual health and rights, and to work to end violence against women, including practices such as FGM. Within that focus on women and girls, we have already seen that one of the best ways to encourage stable populations is by investing in women and girls in the way that I have just described.
My Lords, at the end of 2021, the UK had delivered only 11% of the vaccines that it had earlier promised to the developing world. As a result, coronavirus has continued to spread and mutate throughout many of the poorest nations on the planet. How will the Government use their new strategy for international development to support and promote vaccinations in the poorest parts of the world? Do they support the World Health Organization’s target of vaccinating 40% of the population of every country by the end of this year and 70% by the middle of next year?
Protecting global health and meeting the Prime Minister’s commitment to deliver 100 million Covid-19 vaccine doses to the world’s poorest countries remains a top priority. The integrated review set out the UK priorities for global health to build resilience, at home and overseas. This includes delivering the Prime Minister’s five-point plan to bolster international pandemic preparedness, as well as reforming the World Health Organization and prioritising support for health systems around the world.
My Lords, parishes across England have links through the Anglican Communion with international communities where the issues of poverty, conflict and disease are most clearly felt. Those are shared by the people in our congregations in this land. As the bishops from the Anglican Communion gather for the Lambeth Conference this summer, I hope the Minister will enable us to present something about our nation’s international strategy for international development that will address some of the most crucial issues. First, there are the ways in which human rights are trampled on, particularly in the context of persecution of people for their faith—both Christian and other faiths. Secondly, there is the use of opportunities for partnership with the Anglian Communion in that strategy. Thirdly—
I thank the right reverend Prelate for his question. The UK is blessed with the sheer breadth and diversity of organisations representing civil society, and chief among them is our network of churches. We are committed to working in partnership with a whole range of civil society organisations, including from the UK and beyond. I am very keen to hear the examples the right reverend Prelate cited and very happy to have that discussion on the specifics.
My Lords, the volcano in Tonga demonstrated the vulnerabilities of island nations in the Pacific—as indeed, in a different way, has the Chinese Government’s intervention in the Solomon Islands. Will my noble friend the Minister say that the international development strategy will give an enhanced priority to island nations in the Pacific, when it is published?
My noble friend makes an important point. Covid exposed the vulnerabilities of those small island developing states, in much the way that climate change, in the longer term, is exposing the vulnerabilities of small island states and small island developing states. So, yes, the answer is that we are increasing our emphasis on, and will boost our support for, small island developing states. Part of this is the Indo-Pacific tilt, which noble Lords have heard a great deal about. Equally, we will be raising our aspirations towards and support for the Caribbean, through overseas territories and beyond, for precisely the reasons my noble friend addresses.
The Minister reminded us of the Foreign Secretary’s commitment to ensure that the strategy focuses on women and girls and, in her words, their “freedom to succeed”. Malnutrition is the single largest cause of death in women worldwide and I was extremely disappointed that the Government were not able to make a commitment at the Nutrition for Growth Summit in December. However, I was heartened to see that our global leadership position is returning, in part with the announcement of £1.5 billion in funding for nutrition. None the less, this will not meet the WHO global nutrition targets by 2025. Will the Government review that pledge in time for the next Nutrition for Growth Summit in 2024?
The noble Lord is certainly right. Malnutrition contributes to nearly half of all child deaths globally. It is a key priority for the FCDO. Improving nutrition will play a key role in achieving all our objectives on ending preventable deaths of mothers, babies, children, women and girls through humanitarian aid and global health. The strategy, when it is published in the spring, will lay out what that means in terms of the financial priorities and allocations.
My Lords, do the Government agree that a key part of our international development strategy should be the promotion of democracy and good governance? What signal does the Minister think is sent when, following the elections and peaceful transfer of power in Zambia, we have cut its aid budget by 50%?
The reduction from 0.7% to 0.5% was always going to result in difficult decisions. It is not a decision the Government took lightly or that anyone in government welcomes. We will return to 0.7% as soon as the tests laid out by the Chancellor are met. As I have said, our focus on and recognition of the importance of the continent of Africa will be reflected in the changes going forward.
My Lords, the Greek Prime Minister raised this issue with our Prime Minister when they met last November. Our Prime Minister emphasised the UK’s longstanding position that this is a matter for the trustees of the British Museum, who legally own the sculptures. Her Majesty’s ambassador in Athens has also discussed this issue with Greece’s Minister for Culture, most recently in January. The British Museum operates independently of the Government, meaning that decisions relating to the care and management of its collections are a matter for its trustees. The Government fully support the position taken by the trustees. The Prime Minister made these points clear to the Greek Prime Minister when they met. Both agreed that the issue in no way affects the strength of the UK-Greece partnership.
My Lords, is the Minister aware that, in the British Museum, there are more than 108,000 Greek artefacts, of which 6,500 are currently on display? More importantly, will he accept that my plea that we should consider returning the marbles is based on the fact that they are a unique piece of art, they belong together and they have a proud history in terms of the Greek historical traditions? Surely we should think again.
My Lords, the British Museum has more than 4.5 million objects from its collection that are available to study online. It is visited by 6 million people a year, and its fantastic collection from across human history is admired by people from around the world. Sadly, half of the original sculptures on the Parthenon are no longer with us, mostly destroyed by the turn of the 19th century, not least in the appalling tragedies sustained in 1687 when the Venetian army hit the Parthenon, which was being used as an armament store by the Ottoman Empire at the time. Of the half that remain, around half are in the British Museum, where they can be admired as part of the sweep of human civilisation, and about half can be admired in the Acropolis Museum, seen alongside the building which they once adorned.
My Lords, human society rests on the principles of private property, of free contract and of the elevation of the individual above the collective. Will my noble friend confirm that these precepts are incompatible with the concept of a collective claim based purely on geography?
My noble friend makes an important point. The Parthenon sculptures were acquired by the late noble Earl, Lord Elgin, legally, with the consent of the then Ottoman Empire. The British Museum is always happy—and the trustees have made this clear—to consider loans to museums that recognise its legal ownership of the items. That is the stumbling-block in this instance.
My Lords, the British Museum Act has a provision that Nazi-looted art can be sent back, as can human remains within 1,000 years. Would the Government consider revising the Act to consider the return of other looted artefacts from wheresoever they came?
The noble Baroness makes an important point about two decisions that Parliament has taken in relation to items plundered under the Third Reich and human remains which are less than 1,000 years old. These were decisions taken by Parliament, just as was the passage of the British Museum Act, and just as was the decision, following the Select Committee that looked at this in 1816, to acquire the objects at the time. It was looked at again by a parliamentary committee in 2000 under the chairmanship of the late Sir Gerald Kaufman. The Government have no plans to change the law.
My Lords, would it not be a helpful step for the Government to set up an independent expert panel to deal with such concerns across all our national museums, to establish an ethical framework in which guidance can be given and decisions made?
The noble Earl makes an important point. We are working with Arts Council England to look at the guidance available generally to museums in considering questions of restitution and repatriation. I have had some fruitful and interesting discussions with museums, including, most recently, the Great North Museum in Newcastle, which is considering items in its collection. I will continue to have those conversations with museums with a range of views, but it is important that we get that guidance right. It is possible to add further grievance —I have been following the issue of the return of the Benin bronzes by Jesus College, Cambridge, which has caused some disagreement between the current Oba of Benin and the Legacy Restoration Trust in Nigeria. We must get this right and act considerately.
My Lords, it is the turn of the Labour Benches, and the noble Lord, Lord Campbell-Savours, wishes to speak virtually. This is a convenient point for me to call him.
My Lords, how does the Minister respond to Boris Johnson’s earlier elegant words of wisdom, when he wrote, in more romantic times:
“The Elgin marbles should leave this northern whisky-drinking guilt-culture, and be displayed where they belong: in a country of bright sunshine and the landscape of Achilles, ‘the shadowy mountains and the echoing sea’”?
Would it not be a generous act in his final days, before —if I can possibly say this—being sacked, to arrange for their return? We could retain replicas.
My Lords, fortunately for all Ministers, government policy is not made by the things that Ministers wrote when we were undergraduates. The Prime Minister has made the long-standing position of Her Majesty’s Government clear to the Greek Prime Minister, most recently when they met in November.
My Lords, as a former trustee of the British Museum, may I ask my noble friend the Minister if he agrees with me not only, as he said, that the British Museum is prepared to lend objects—and is at this point lending objects to many countries generously on a long and short-term basis—but that this requires an acknowledgement of the good title that the British Museum has to those objects?
I congratulate my noble friend on his recent appointment as chairman of Sir John Soane’s Museum. He is absolutely right that the British Museum is indeed a very generous lender, both overseas and within the United Kingdom. Before the pandemic, the British Museum normally loaned over 2,000 objects to around 100 venues outside the UK every year. In addition, as I say, many millions of people come to see the items in its global collection in Bloomsbury. The British Museum will consider any request for part of its collection to be borrowed, but that requires its legal ownership of those items to be recognised.
My Lords, can the Minister tell the House whether Her Majesty’s Government are facing the issue of repatriating ancient treasures by themselves? I note that many European capitals are affected. For instance, the Louvre is home to the “Winged Victory of Samothrace” and the “Venus de Milo”.
I think it is important that we look at this on a case-by-case basis. There are a number of national museums which are prohibited by law from deaccessioning items, and then there are others which are able to make a decision. That is where the guidance of the Arts Council will be important. The noble Lord mentioned the Louvre, which also contains one of the Parthenon sculptures—indeed, these wonderful items are to be found in museums in six countries across the world.
My Lords, the UK has the world’s largest horde of culturally significant stolen artefacts, including the Ethiopian manuscripts, the Benin bronzes, the Rosetta Stone, the ring of Tipu Sultan and much more. These items matter to the places from which they were taken, often by force. Could the Minister please consider publishing a timetable for returning these items to their rightful place?
I am afraid I cannot agree with the noble Lord, nor indeed in completeness with the list that he cited. That is why, as I say, it is important that we approach this on a case- by-case basis, looking at the items, how they came to be in the United Kingdom, how they were acquired, whether they are—as in the case of the Parthenon sculptures—legally owned by the museums, and to look at these matters considerately.
My Lords, the task of a museum is to preserve, educate and inspire. In an era where we can now make extraordinarily accurate copies— down to the tiniest chisel mark and chip—could we not argue that we would be fulfilling our duties to protect and educate if we were to reunite the Elgin marbles and send them back to their birthplace, that wonderful museum by the Acropolis? Could we not also argue that this would be an act of historic inspiration which would make—how can I put this?—the Greek gods, as well as our Prime Minister, weep with gratitude?
My Lords, the Acropolis Museum is indeed remarkable. I had the pleasure of visiting some years ago, and I greatly enjoyed it—just as I have enjoyed visiting the British Museum, where, in the Duveen Gallery, the Parthenon sculptures there can be admired. They have been admired down the centuries by people including Keats, Wordsworth and Auguste Rodin, who have been inspired into making new works of art as a result. Sadly, it is impossible to reunite the Parthenon sculptures. Half of them have been lost over the last two and a half millennia. At the moment, around half of those that remain are in the British Museum, where they can be admired in the great sweep of human civilisation, and around half can be admired at the Acropolis.
Elderly Social Care (Insurance) Bill [HL]
Order of Commitment
My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
Arrangement of Business
My Lords, today is the penultimate day of Committee on the Nationality and Borders Bill. As the time available for this Bill in Committee is now limited, we will, I am afraid, sit late today to make sure that we get to the target group. It is perfectly possible if all noble Lords co-operate. There is no dinner break business, but we will take a short break of 30 minutes at around 7.30 pm.
I know the significance of the issues in this Bill. So far, we have debated more than 100 amendments; we have about the same number to go. We must finish this Committee stage by the end of Thursday. So far, we have spent 20 hours in Committee on the Bill, but there is a lot of other legislation to progress before the end of the Session. The Companion to the Standing Orders says:
“The House has resolved ‘That speeches … should be shorter’. Long speeches can create boredom and tend to kill debate.”
I know that the Front Benches will co-operate, as they have done hitherto, but I ask that all noble Lords do the same. There are very important issues to be discussed in the debates on this Bill but, if all bear in mind the guidance agreed by this House, we can ensure that everyone’s contributions can be heard this afternoon and this evening.
It is not considerate to other noble Lords who want to speak on later groups to make long speeches early in the day, particularly if they repeat points that have already been made or are not directly related to the amendments. So I repeat my request that noble Lords be self-disciplined and considerate to other noble Lords.
My Lords, I thank the Government Chief Whip for his statement at the start of our proceedings.
As always, as the Official Opposition, we will use our best endeavours to progress proceedings. We have before the House important business that is not uncontroversial and deserves to be properly scrutinised in a business-like fashion, giving us the opportunity to understand fully the Government’s intention, question the Government and get to grips with the reasoning behind the Bill during this Committee stage. I will be in discussion with the Government Chief Whip throughout the day on the passage of the Bill.
On behalf of our Benches, I support the principles laid out by the Government and Opposition Chief Whips. It is in the interest of the health of the Front Benches that we at the very least try to end at a reasonable time tonight and on future evenings this week.
I completely agree that long speeches are boring; I do not have a problem with that. My contributions this afternoon and this evening will be short. However, I point out that the Government do this House a disservice when they bring to us huge Bills that really ought to be four different Bills—the police Bill, for example. If they do that, we have to table a lot of amendments, which means a lot of debate. Perhaps the Government should extend the Committee and Report stages so that we can discuss these really important issues with enough time.
My Lords, I do not want to have a long debate; it rather defeats the object of my original remarks. I just point out to noble Lords and the noble Baroness that it is not simply a question of extending our Committee time. The only time left before Easter, if we are to complete the Bills that are already in progress, would mean going into the second half of the Easter Recess. We do not want to do that.
Nationality and Borders Bill
Committee (4th Day)
Relevant documents: 7th and 9th Reports from the Joint Committee on Human Rights, 11th Report from the Constitution Committee, 18th and 19th Reports from the Delegated Powers Committee
Clause 28: Removal of asylum seeker to safe country
100: Clause 28, page 33, line 20, leave out paragraph (a)
Member’s explanatory statement
This amendment is linked to the amendment to leave out paragraphs 1 and 2 of Schedule 3.
My Lords, I hope that I will not bore you for long. I shall take careful note of the Chief Whip’s remarks but I am very pleased to introduce Amendments 100, 101 and 102. I thank those Lords spiritual and temporal who have added their names to these amendments and who are supportive of the contents.
These amendments seek to remove amendments to Section 77 of the Nationality, Immigration and Asylum Act 2002 from Schedule 3. The intention is to erase the proposal contained in the Bill to introduce powers to export offshore any person in the UK who is seeking asylum without first considering their claim. Few would disagree that protection and control of our borders, primary responsibilities of any Government, are noble and necessary objectives. A Home Secretary must be able to discharge her duties in this respect, which include expediting deportation swiftly and without delay where illegality has been determined under the rules. This was certainly my approach when I served as Immigration Minister in the 1990s.
Most would agree that the process by which we pursue these objectives matters no less than the solutions on the table. Indeed, solutions need to be effective, but they must also be pragmatic and practical, and enforceable under domestic and international law. They need to be imaginative but also financially viable. They must be firm but also fair. I am afraid that Clause 28 and Schedule 3 fail on these counts. In very literal terms, Clause 28 amends the Nationality, Immigration and Asylum Act 2002, which states that a person seeking asylum cannot be removed from the UK while their asylum claim is being processed—in other words, before a final decision is given on their refugee status, including access to an appeal. However, paragraph 1 of Schedule 3 to the Bill withdraws those rights by allowing the transfer of any asylum seeker to any country which will be listed in Section 77 of the Nationality, Immigration and Asylum Act 2002 as amended by Schedule 3.
Before Brexit, under the Dublin regulations, the UK Government could remove an asylum seeker from the UK while their claim was still pending but only to return them to the EU country of first entry and only after having issued a certificate under Schedule 3 to the Asylum and Immigration Act that permitted them a legal right to do so. With the end of the UK’s involvement in the Dublin regulations this option became inaccessible. However, Clause 28 would provide the Home Secretary with the legal power to forcibly remove any asylum seeker from the UK while their claim is still pending to another country which the Government have deemed safe. Clause 28 would allow them to do this without seeking and issuing a certificate under Schedule 3 to the 2004 Act. This goes against our legal and constitutional principles and surely should be repudiated.
All credible immigration systems must first acknowledge the distinction between immigration and asylum. A person who comes here for economic reasons is definitely not the same as a person who comes here to seek safety. The Bill’s failure to disentangle these definitions is significant because in the Government’s bid to control overall immigration, it will be vulnerable people—those fleeing conflict and persecution—who would be disproportionately and adversely affected.
Many years ago, I oversaw an inquiry that included the viability of offshoring. At the time, the proposal was to create processing centres off the mainland but within British territorial jurisdiction. We quickly judged that to be deeply flawed as an idea, but the problems we identified around domestic offshoring are almost trivial compared with the problems we would face by offshoring asylum seekers to foreign territory. For one thing, it would be a clear breach of our principles in the 1951 convention on refugees. We may be abrogating our responsibilities for dealing with applications, as well as those to the asylum seekers themselves, who, by international law, should be able to retain control over where and when they submit those requests. Indeed, a person’s physical removal from the UK would effectively terminate their claim for asylum in the UK, transferring it instead to a third country.
Turning the asylum process on its head in this way draws us on to shaky ground, posing numerous questions that the Government have not yet answered. We still do not know which country might be willing to act as a hub. Albania and Norway have outrightly rejected the offer. Rwanda may or may not be in the running, and there are rumours of Ascension Island—a place with no infrastructure, no means of direct access and no real links to the outside world. We also do not know how the migrants would be treated once they were there. In the Australian centres in Nauru and Papua New Guinea, reports of mistreatment and indefinite detention abounded, with cases of people being left in limbo for as long as eight years. Senior UN officials described the Nauru camp as cruel and inhuman, and many other notable activists similarly decried its record.
The Government claim, and will no doubt continue to claim in relation to Clause 28, that there is an absolute bar on removing an individual from the UK where there is a real risk that they will experience torture or inhuman or degrading treatment, yet some of the countries under consideration can hardly be described as exemplars of rules and rights. The truth is that, once outside the UK’s jurisdiction, people sent offshore will have none of the safeguards of UK law. I cannot see how this would work or how it could be acceptable.
On top of that, we do not know for sure whether those asylum seekers who have had their applications accepted would then be allowed to come into the UK. Existing UK case law holds that an asylum seeker cannot be granted asylum unless they are in the UK at the time of decision, but this Bill provides no power for the UK to readmit them or grant them any form of leave, and neither does it explain what will happen to those who have had their applications rejected. Where, if anywhere, will they be sent? What support, if any, will they receive? People’s lives are then at stake.
The extent of the powers conferred by such legislation necessitate clearly defined and transparent policies. It is not at all clear how this policy would work. We know that the Australian experiment on which this policy was modelled was a failure—one centre has been completely abandoned, and one no longer accepts new refugees, though the latter is still costing the Australians billions of dollars to maintain.
We also know that offshoring is ineffective as a deterrent to boat crossings. More people arrived by boat in Australia in the first year of offshore detention than in any previous year. The authorities resorted to using maritime interceptions instead, with the Australian navy endangering lives as a result. This is such an appalling prospect here, and I was relieved that border coastguards have ruled themselves out of any such endeavour. The so-called deterrent did not work there and would not work here.
We know that the costs of offshoring would be exorbitant—current conservative estimates put them at £2 million per person per year. We are talking about a bill running into the tens of billions of pounds. It is an astronomical sum of taxpayers’ money to pump into a project so fraught with problems. I pity the Minister who would have to justify this expense to the public at a time of serious economic uncertainty.
Finally, there is no question that we need urgent action and we need to be decisive. But decisive should never mean draconian. Current problems cannot be remedied by harsher policies. Offshoring is an extreme solution that is practically flawed, morally dubious and destined to fail. If the United Kingdom truly wants to be firm and fair, we must not allow this clause on to our statute book. I beg to move.
My Lords, in rising to support Amendments 100 and 101, to which I have added my name, I declare my interests in relation to both the RAMP project and Reset, as set out in the register.
When people arrive on our shores seeking protection, we have a responsibility to treat them as we would wish to be treated if we had to flee for our lives. It is right that we have a process to determine who meets the criteria for refugee status, but while we determine this, we are responsible for people’s safety, welfare and care. If we move them to other countries for the processing of their asylum claims, I fear a blind eye will be turned to their treatment. How will we be sure that they are being treated humanely and fairly, and would our Government even give this much concern once they had left our shores? If we look to the experience of Australia and the refugees accommodated in Nauru, as the noble Lord, Lord Kirkhope, has just mentioned, we hear deeply shocking accounts of abuse, inhumane treatment and mental and physical ill-health.
As mentioned in relation to an earlier amendment, I visited Napier barracks last week to see improvements that have been made since the exposure of the disgraceful conditions at the beginning of last year. If what we have seen at Napier is permitted to happen in the UK, what can we expect overseas, where accountability and monitoring will be so much harder? The monitoring of asylum accommodation contractors in the UK is poor, which gives us some idea about the level of monitoring we could expect of offshore processing.
What standard will be set for offshore accommodation? Will it be detention? How can UK safeguards be enforced in another country? Will there be a maximum period of stay? Minister Tom Pursglove stated in the Public Bill Committee that
“we intend their claims to be admitted and processed under the third country’s asylum system.”—[Official Report, Commons, Nationality and Borders Bill Committee, 26/10/21; col. 397.]
This is deeply concerning. These asylum seekers are the UK’s responsibility; they came to us to ask for protection, and we cannot simply wash our hands of them. What will be the acceptable standards of a country’s asylum system for us to discharge refugee determination to them? Can the Minister confirm that, if an individual is granted asylum offshore, they will be granted any form of leave in the UK and readmitted?
We had assurance in the other place from Minister Tom Pursglove that unaccompanied children will not be included in offshoring, but will children in families be offshored? If not, can the Minister assure us that families will not be split up in this process? We need to see any such commitments written into the Bill. I also want reassurance from the Minister that offshore agreements will not be linked to international aid agreements. This would be wrong, so can she give us that reassurance?
Offshoring would be a huge cost to the taxpayer. Can the Minister tell us what work has been done on the costs? Have such costs been endorsed by HM Treasury?
The financial cost is not the only one: there would be a significant cost to our international standing. Are we so keen to tarnish our reputation as a country where human rights are upheld for this inhumane policy, rather than one that is rooted in what will actually work to reduce the need for people to have to use criminal gangs? We will discuss these policy proposals in future debates.
People seeking asylum have arrived on our shores, seeking UK protection. We are responsible for them. It is not a responsibility we can pass over to others. The potential for standards and safeguards to drop is a very serious risk, with the challenges of monitoring and accountability at distance. They would far too easily become forgotten people. Offshoring must simply be ruled out of order.
My Lords, I too support Amendment 100, in the name of my noble friend Lord Kirkhope, to which I have been pleased to add my name. I refer to my entry in the register of Members’ interests.
The question of offshore detention is undoubtedly one of the most controversial aspects of this Bill, which is designed to stem the flow of small boats from France. The stated objective of this policy is one of deterrence, but opponents of the policy have rightly been asking: at what cost?
Before we look at the issue of offshoring, I will take a moment to look at and think about the sorts of journeys taken by those fleeing violence and war. Asylum seekers are frequently exposed to intolerable levels of risk as they travel. Irregular migrants face dangerous journeys: they are unprotected, they accumulate debt, and they have no legal recourse. The limited opportunities for legal migration force individuals to use people smugglers where there is a risk of being trafficked. Asylum seekers who fall prey to human traffickers can be exploited in both transit and destination countries. During the asylum seeker’s journey, the fine line with human trafficking—the acquisition of people by force, fraud or deception with the aim of exploiting them—can be easily crossed.
Just imagine you go through all that and end up on these shores. It has taken your savings and months of your life to arrive here from, say, Afghanistan, Syria or Iran. On arrival on our shores, we greet you and, before we have even assessed whether or not you are a refugee, put you on a plane and take you back to the continent from which you came. That action alone could kill someone, but my question is also: what does that make us?
Before I set out my reason for asking the Home Secretary to think again about the use of offshore detention and processing, whether in Rwanda, Ghana or Ascension Island, as we have heard, I will return to the point I made last Tuesday. The best hope of a fair, just and affordable solution to the issue of the Calais boats still lies with a diplomatic solution with the French and EU nations. Will my noble friend the Minister comment on the Telegraph story on Wednesday about the French President’s apparent openness to a deal over channel crossings? As I have suggested a number of times, a returns agreement with the French is likely to be the only viable way to stop the crossings. I imagine this taking the form of an agreement that those who have crossed here irregularly are sent back to be assessed in France; in return, we commit to taking a certain number from Calais. This is a win-win solution that would genuinely destroy the economic model of the people smugglers, would cost less and would be far more humane.
Could my noble friend the Minister also provide an estimate of the cost of offshore processing? A cursory glance shows that a room at the Ritz costs between £650 and £700 a night. Extrapolate that and one finds that it costs around £250,000 to stay at the Ritz for a year. The estimates of what the Australians pay for one asylum seeker held in detention vary from that amount to eight times that. How can that be justified?
It is not only the cost that concerns me. Can the Minister provide reassurance that no children will be sent offshore and that women who are vulnerable to sexual violence will receive proper protections? The concerning stories that emerge from processing camps in other countries should give us pause for thought before we embark down this road. When there are other potential diplomatic avenues that the Government are yet to properly consider, offshoring looks like an oversized hammer being used to crack a nut, with the potential for corrupting our character as a nation and our international reputation, and increasing racial tensions domestically and the administrative burden and cost to the state. I urge the Minister to think again and for this House to give the other place an opportunity to think again.
Outside on the streets today are people supporting those of us who are fighting this Bill. They understand the damage it does not only to the refugees and people seeking asylum here but to the Government’s reputation. I do wonder. We have to say these things, because our consciences would not let us not say them, but are the Government listening? I rather think not. Essentially, these clauses are about being able to deport refugees while their asylum claim is being processed. That is not fair on the individuals involved and, I would argue, is inhumane. They are simply being herded like cattle and packed off to be trafficked, essentially.
Clause 28 and Schedule 3 make provision for safe countries, but no provision for safe accommodation. We know that the accommodation we provide here in the UK is pretty substandard and, sometimes, outright revolting, so I have no trust that safe countries will do any better than we have. I have a question that I would like answered today: what steps will the Government take to assess the conditions and that these people are being treated well in those safe countries?
My Lords, I will follow on from what the noble Baroness and my noble friend Lord Kirkhope said. I will say a little bit on the Australian experience, which is the only relevant extant experience that we have at the moment.
What happened in Australia was that, in 2001, the Liberal Party of Australia and the National Party of Australia, the equivalent of our Conservative Party, introduced offshoring as a policy. I have no knowledge of how it worked at that point—I just do not have any information—but it carried on until 2008, when the Australian Labor Party was elected in a general election and desisted from offshoring. After that, there was a huge increase in the number of boats coming into north Australia, up to about 50,000 a year, and, as a consequence of that, the Labor Government did a U-turn and reintroduced offshoring. Unfortunately, this was too late in terms of political consequences: it lost the general election, and, in 2013, a new Liberal and National Government came in, reintroducing offshoring and beefing it up, with the army and navy playing a role in all of that. That is the history of it.
It was then highly successful: the offshoring completely stopped the human traffickers’ business—they had no more scope to bring people over because people simply did not believe that they would get into Australia—and the whole thing was a success, so much so that the opposition Labor spokesman agreed that, essentially, the boats had been stopped by the offshoring techniques. Thereafter, the Australian Labor Party changed its policy, and the policy now has cross-party support in Australia—both the Liberal Party and the Australian Labor Party support it—and boats no longer go across from Indonesia to Australia. The policy succeeded.
As my noble friend said, it is perfectly true that there are some issues in Nauru and Papua New Guinea—essentially residual issues arising from previous years—which have been difficult to resolve. I am sure that we would all want those to be resolved quickly and properly for humanitarian reasons.
However, clearly the Government are looking at this. Of course, there is no guarantee at all that such a policy, which was successful in Australia, would be successful here—one cannot pretend that that is necessarily likely to happen. The fact is that, although the situation is the same, in that people are crossing by sea to England and the UK as they were to Australia, the geography and the politics are different, and it is quite possible that it would not work in British circumstances. That is the truth of the matter.
None the less, it would be a dereliction of duty if the British Government did not try to look at this and examine whether it can work. The first thing that they have to do is, as the Australians did, pass the relevant legislation that enables them to put this into practice and see whether it does, in fact, work. That is where we are now—we have not done anything about it, and it is not in place. It will not be in place until some time after we have passed this legislation—
Could my noble friend outline his thinking on, for instance, the proximity of Nauru to Australia and whether that is not more the equivalent of saying that France or another European nation would be the location of the offshoring, rather than, say, Rwanda, which is on completely the other side of the world? Could my noble friend perhaps acknowledge the differences and unpack that for us a little?
Yes, I do acknowledge the differences, which is why I said that there is no guarantee at all that, even if this is tried, it will work in British circumstances. All I am saying is that it worked in Australian circumstances, the Government are clearly interested in this and, as I say, it would be a dereliction of duty if they did not put this among their options and pass the legislation that enabled us to try this out. That is where we are now.
I point out that, after the success of this policy in Australia, the Australian Government were enabled to expand the legal routes for asylum seekers to go to that country because it ceased to be controversial: immigration was less controversial as a consequence of the anti-boat policy being successful. The fact is that, as I have said before in these debates, if the public do not buy into the policy, you will have problems in persuading them to have more immigration. If they buy into it because they can see that you are controlling your borders, they have a more relaxed attitude to immigration and accept higher levels of it because they can see that they are in control of both the amount and the type of immigration coming in.
Therefore, there is a prize at the end of this for those who genuinely want to have more immigration, frankly, than we have at the moment, and if you can seem to be in control. What worries people is if you are not in control—if they can see clearly that people are behaving illegally getting here, jumping the queue and all the rest of it. In view of what the Whips on both sides have said, I do not want to go on any longer, but we ought to consider this in a rational and sensible way, as a clear option that any responsible Government of whatever kind should pursue; and I point out that, in Australia, for example, it does have all-party support.
I tend to give more credence to people on the ground, but there it is.
I share concerns that have already been raised about potential health and human rights implications and the general dehumanising nature of a power that allows the British Government, in the words of the UNHCR,
“to externalise its obligations towards refugees and asylum seekers to other countries with only minimal human rights safeguards”.
No doubt, we are talking about poorer countries on the other side of the world to which asylum seekers will be moved like cattle, as the noble Baroness, Lady Jones, said.
I want to raise a few questions; some have been covered so I will not repeat them but build on them. First, with regard to children, who a number of noble Lords have mentioned, in the Commons the Minister assured Caroline Nokes, a former Immigration Minister, that unaccompanied children would not be transferred for offshore processing. When she asked about accompanied children, and about what would happen to a child who turned 18 during the process of applying for asylum, answer came there none. I hope that there will be an answer to those questions today.
Can the Minister also say what would happen to a child whose age is disputed? When we reach that group of amendments—probably around midnight, so it will be great scrutiny—we will hear of the widespread fears among medical and social work professionals and children’s organisations that Part 4 of the Bill will lead to many more children being wrongly assessed as adults. If so, I fear that many unaccompanied children could be transferred because it is not believed that they are, in fact, children. I would welcome the Minister’s thoughts on that. Can she assure us that no young person will be transferred while the age-assessment process is going on?
Secondly, building on what the right reverend Prelate and the noble Baroness, Lady Stroud, said, the UNHCR observes that the Bill
“is silent on what, if any, legal obligations the United Kingdom would consider itself to have”
towards asylum seekers once their asylum claims have been dealt with. It expresses concern that there is nothing in the Bill that confines the application of the changes to extraterritorial processing, which is the stated purpose in the Explanatory Notes.
Detention Action warns that, even if a third country’s authorities recognised the asylum seeker as a refugee, the Bill provides no power for the UK to re-admit them or grant them any form of leave. Can the Minister say whether this interpretation is correct? If it is not, can she assure us on the record that those who are deemed to qualify for refugee status will be readmitted to the UK—that is, the country from which they sought refugee protection—and explain under what legal power in the Bill they would be so readmitted? If Detention Action’s interpretation is correct, this is not simply about offshore processing, which is a euphemism, but, even more shockingly, it is about the Government wiping their hands of all responsibility for those who qualify for refugee protection via a claim for asylum—not short-term offshore processing but long-term deportation. If so, the case for Clause 28 and Schedule 3 not standing part of the Bill is that much stronger.
My Lords, the Government’s position in justifying this and other measures in the Bill rests on the UK’s so-called excellent track record on refugees, and the Minister has repeatedly pointed to the UK’s track record on resettlement schemes. The UNHCR thinks differently:
“Resettlement programmes, while welcome, are, by themselves, an inadequate means for fairly distributing global responsibilities towards refugees and sharing the burden currently shouldered by major host countries.”
It goes on to give the facts about the numbers who are making their own way from areas where people are being persecuted. It concludes:
“For all of these reasons, the Bill undermines, rather than promotes, the Government’s stated goal of improving the United Kingdom’s ‘ability to provide protection to those who would be at risk of persecution on return to their country of nationality.’”
As the noble Baroness, Lady Jones of Moulsecoomb, has just said, one of the reasons for offshoring is to temporarily house asylum seekers while their claims are being considered. Would the Minister like to comment on an article in the Times on Saturday that claimed that Priti Patel, the Home Secretary,
“wants to … reject Channel migrants’ claims for asylum within a fortnight of them reaching Britain”?
The story claims that
“government lawyers raised concerns over the plans”
but the Secretary of State
“believes a fortnight is a ‘reasonable’ window for immigration officials”
to make such a decision. According to the article, a Home Office spokesperson told the newspaper:
“We do not comment on leaks”,
so I ask the Minister a different question. Does she believe that two weeks is a reasonable timeframe to consider asylum seekers’ claims? If so, there would not appear to be any need for offshoring.
The Bill goes from bad to worse. As Amnesty and Migrant Voice put it,
“the prevailing attitude emanating from the Home Office … appears determined by any means and at almost any cost to seek nothing more than avoiding its responsibilities while demanding other countries should take theirs. This is a hopeless prescription from which no good can possibly come”.
The Home Office is seeking the power not only to remove an asylum seeker to any country while it considers their claim, but to do so and then tell that country, “If you think they are a refugee, you take them. It’s not our problem any more”. I do not know how the Government think they can persuade another country to take the UK’s unwanted asylum seekers on either a temporary or a permanent basis. According to Amnesty and Migrant Voice, offshoring by Australia effectively excluded legal, judicial, medical, humanitarian and media scrutiny; has cost a fortune—over £500 million a year, according to the British Red Cross—and, contrary to what the noble Lord, Lord Horam, seems to have seen or heard, has failed to stop those seeking asylum, including those arriving in Australia by boat.
I understand that academic evidence on the whole offshoring scheme was given by a university in Australia to the Public Bill Committee in the other place that appears to contradict the evidence that the Australian High Commission gave to the same Committee, so there is clearly a serious difference of opinion as to whether the scheme is successful. Apparently, the independent academic assessment of the scheme thinks it is a failure. The UNHCR says:
“As UNHCR has seen in several contexts, offshoring of asylum processing often results in the forced transfer of refugees to other countries with inadequate State asylum systems, treatment standards and resources”,
which amendments in this group seek to address.
“It can lead to situations in which asylum seekers are indefinitely held in isolated places where they are ‘out of sight and out of mind’, exposing them to serious harm … UNHCR has voiced its profound concerns about such practices, which have ‘caused extensive, unavoidable suffering for far too long’, left people ‘languishing in unacceptable circumstances’ and denied ‘common decency.’”
I am hoping that this apparently unworkable and morally repugnant provision is yet another paper tiger, designed to appeal to the Daily Mail in deterring genuine asylum seekers, but that it is no more than propaganda. Clause 28 and Schedule 3 should not be part of the Bill. All the other amendments in this group are well- meaning, but they are window dressing.
It seems to me that the amendment of the noble Lord, Lord Kirkhope, and indeed all those in this group have to be right. The idea of offshoring is immoral and it would not be in line with the traditions of this country. It is also impractical; for one thing, it would be horrendously expensive, as the Australian experience shows. Offshoring in Australia has proved as damaging to its exchequer as to the reputation of Australia. Of course, that is not what the high commissioner said. I used to be a diplomat and one tends not to say that sort of thing about one’s own country when on diplomatic duty.
However, the real and biggest reason I am against this provision is that it is illegal. It is a clear breach of the refugee convention. We had this argument before, so I can do it in shorthand: there is no provision in the refugee convention that fits with proposed new subsection (2B)(b) of Schedule 3, which is at line 20, where a safe country is defined as
“a place from which a person will not be removed elsewhere other than in accordance with the Refugee Convention”.
The refugee convention, however, says nothing about removal to third countries, safe or not. It says that a refugee is a refugee in a place when he says he cannot go home, because he will not be protected at home and would like to ask for the protection of the host state in the country where he is. That is what the refugee convention says. It says nothing about how he got there, nothing about a “first safe country” and nothing at all about exporting him somewhere else, so the language of new subsection (2B) in Schedule 3 is a misreading of that convention.
Of course, we know that the Government are deliberately misreading the refugee convention. I still think it would assist our debates greatly if the Government would change their mind and let us see the legal advice which has caused them to take the eccentric view that they take of the convention, and hence to propose Clause 11 and all that follows.
My Lords, I intervene briefly and for the first time in this debate, provoked into doing so by what the noble Lord, Lord Kerr of Kinlochard, has just said. It is fundamentally wrong to legislate in a way that obliges you to break international law. It is very simple, but that is it. We do not have islands around our shores where we can gather together vast groups of potential refugees and asylum seekers.
The other day I was reading a review of a book, which has just come out, about the Isle of Man in the Second World War. There was of course great panic about people of German origin—although most of the poor people were of Jewish origin as well—domiciled in this country. They were rounded up and taken there. There are some fairly inspiring stories but also some very depressing stories. We have to tread exceptionally carefully here. We have gone on a lot about global Britain, but if I am to be proud of global Britain, I want to be proud of a country that is upholding the highest international standards.
Although I take on board what my noble friend Lord Horam said a few moments ago—he made a gently forceful speech that deserves consideration—I just cannot for the life of me think that to herd people into encampments in Rwanda and other far distant places is anything other than a repudiation of our standards as a great country. It would be fundamentally wrong for us to go along this line. Treat thy neighbour as thyself. There is a lot of wisdom in the 10 commandments. A bishop should really be saying this rather than me, but I really believe that it is essential that whatever we do is consistent with our record as the great nation that abolished slavery throughout its dominions and before that abolished the slave trade. There were battles in Parliament for both, but my parliamentary hero is William Wilberforce and I do not want to see his reputation traduced.
My Lords, I have been sitting on my hands because whenever you tell a personal story, it looks as though you are not pleading what the noble Lord talked about—law. We arrived in 1974 and were treated with such great respect, love and care. For about 20 years we travelled on a British travel document. That kind of hospitality was of great help to us all.
The way I read this clause is almost as a revisitation of Guantanamo Bay—a very bad piece of work—or voluntary rendition, whereby people were taken from one country to another to sort out whether they were terrorists or not. This country should not use offshoring. The word “offshore” already does not have a good reputation in terms of money and offshore investment. This is a country that has been the mother of parliaments and the mother of legislation and where the rule of law is what governs all of us. How can we get a third country to take what we call refugees?
I can assure noble Lords that there will be many countries in Africa that will volunteer to do it. The question we have to ask is: how do those seemingly wonderful countries treat their nationals? Do they treat them in the same way that this country does? I would be very doubtful. For the sake of the rule of law, for the sake of this great Parliament and for the sake of the British people who have been very good in welcoming the likes of me, this clause should—please—not become part of the legislation.
I reiterate what was said a little while ago: this is about asylum, not general immigration policy. There is a considerable difference between the two; that does not always get recognised.
This proposal to offshore asylum claims is inconsistent with the global humanitarian and co-operative principles on which refugee protection is founded. Frankly, if everybody did what we are proposing, there would not be much of the refugee convention left, as I am sure everybody recognises and, in their heart of hearts, knows to be true.
Having made those introductory comments, I will endeavour to be brief. I want to ask one or two questions. The Minister in the Commons said:
“Schedule 3 aims to reduce the draw of the UK by working to make it easier to remove someone to a safe country where their claim will be processed. It amends existing legal frameworks to support our future objective to transfer some asylum claims to a safe third country for processing.”—[Official Report, Commons, Nationality and Borders Bill Committee, 26/10/21; col. 388.]
As I have just indicated, the Minister referred to “some asylum claims” being transferred. Will the Government spell out in their reply what categories or types of asylum claims would be processed in another country, and what categories or types of asylum claims would be processed in this country? In addition, based on claims made over the past three years, what number or percentage of total asylum claims and claimants would be processed in and removed to another country, and what number or percentage of total asylum claims would still be processed in this country? I assume that the Government have figures on that.
Information on the countries we have reached agreement with for offshore processing has been, to say the least, a bit thin on the ground, with Ministers saying to date that they are not prepared to enter into a “running commentary” on the conversations that are taking place. I hope that the Government will be a little more forthcoming today on which specific countries we have reached agreement with, or confidently expect to reach agreement with, and which countries have declined to reach an agreement with us. Also, how many different bilateral negotiations are we currently involved in?
It is unacceptable to be told by the Government that we should agree to a policy and its associated clauses and schedules, which, however repugnant, are meaningless and cannot be implemented unless appropriate agreements are reached with other countries—and then, when asking the Government to give information on whether and what agreements have been concluded, to be told by them that it is none of our business. That is what the Government have been doing to date. We expect better from their response today. However, if the Government are going to continue to play dumb on this issue, perhaps it would be better for them to withdraw Clause 28 and Schedule 3 until such time as they have concluded agreements with other countries, without which the policy cannot be implemented.
The only thing the Government have said is that the model the Home Office intends to proceed with is
“one where individuals would be processed as part of the asylum system of the country that we had an agreement with, rather than people being offshore and processed as part of our asylum system.”
So it is not just offshoring; it is also treating and dealing with people under another country’s asylum system rather than our own. The duty to ensure that the rights of asylum seekers are respected would still fall on the UK; it would be helpful if the Government could confirm that in their response.
Essentially, as has already been said, the UK would be outsourcing its refugee convention obligations, potentially to less wealthy nations. The UNHCR has been highly critical of efforts to offshore asylum processing, noting how
“offshoring of asylum processing often results in the forced transfer of refugees to other countries with inadequate State asylum systems, treatment standards and resources. It can lead to indefinite ‘ware-housing’ of asylum-seekers in isolated places where they are ‘out of sight and out of mind’, exposing them to serious harm. It may also de-humanise asylum-seekers.”
The comment has already been made that it appears that the Government are seeking to emulate as a model the Australian system—a system which has been widely condemned for its human rights abuses. Offshoring presents a significant risk of harm, particularly to vulnerable people, since the reality is that the UK Government would have much less control over the treatment of detainees than they do in this country, where there have nevertheless been unacceptable incidents and unacceptable standards. Since the Government have said that the object of offshoring is deterrence, there must presumably be no exceptions to the policy. Perhaps the Government could confirm whether or not that is the case.
Policy measures that rely on deterrence assume that people have a choice in the decisions they make. People who are forced to flee their country because of violence and persecution in reality have no such choice. Consequently, deterrent measures will not stop them making the journey to find safety.
There is no empirical evidence to support the effectiveness of offshoring as a deterrent strategy in respect of those fleeing persecution. The likelihood is thus that offshoring will be completely ineffective in its aims as well as inhumane—that is leaving aside the moral issues that have already been referred to. I shall not go into the figures, but I too believe that the financial cost of the Australian system is very high. It would be helpful if the Government could say in the light of the Australian experience on costs what their estimated cost per case is for this country in respect of an asylum claim processed in another country and the asylum seeker being transferred to it, since I assume that the Government will have some fairly accurate and up-to-date figures on that point.
Will the Government also say what their evidence is to substantiate the claim in the Explanatory Notes that the policy will
“deter irregular migration and clandestine entry to the UK”?
I am not sure what the evidence is to substantiate that assertion.
In the Commons, the Minister said:
“Schedule 3 is designed to be part of a whole system deterrent effect to prevent illegal migration. Access to the UK’s asylum system should be based on need, and not driven by the actions of criminal enterprise.”—[Official Report, Commons, Nationality and Borders Bill Committee, 26/10/21; col. 388.]
Can the Government say how this policy of processing asylum claims in another country and removing claimants to that other country is based on need? No assessment of need would be made before a person could be moved to that third country, so need does not enter into it as far as the Government are concerned. If I am wrong in that, no doubt the Government will say why it is based on need.
In addition, the Commons Minister mentioning “criminality” later in that response does not make this a clause which is targeted at criminals. It is targeted at people who are desperately seeking refuge and have legitimate reasons to be granted it. It is not targeted at those involved in the kind of criminal enterprise to which we all object most strongly and wish to see stamped out.
On another issue—it has already been raised, but I shall repeat it—in the Commons the Government said that children would not be transferred overseas for their claims to be processed. I too ask: what happens if a family arrives seeking asylum? Will they be split up, with the parents sent to a third country for their claim to be processed and the child or children remaining in this country for their claim to be processed here? As others have asked, what happens to those whose asylum claims are accepted and who have had the claim processed overseas? What happens to those who have been removed to another country for their claim to be processed if their asylum claim is rejected?
My name is down in respect of two stand part notices, in relation to Clause 28 and Schedule 3. This is an unworkable, highly expensive and politically driven policy which is not even backed up by the agreements with other countries that are needed to bring it into effect. The policy appears based on the Australian model, which was costly and did not seem to provide as much deterrent effect as intended as far as those arriving by boat were concerned.
My Lords, I add my name to that of the noble Lord, Lord Rosser, in giving notice of my intention to exclude Clause 28 and Schedule 3 from the Bill. To move an asylum seeker to a detention or reception centre offshore while their claim is being assessed is wrong in principle, oppressive in practice, contrary to the 1951 convention and lacking sufficient safeguards under the Bill. Many speakers referred to Australia’s policy of offshore processing, as an example both of how awful it can be and, by one speaker, of a successful operation to deter unlawful immigration. It is worth putting a little flesh on the Australian experience.
In 2013, Amnesty International published a report, This Is Breaking People, highlighting a range of serious human rights concerns at the Manus Island, Papua New Guinea, immigration detention centre. In an update, Amnesty International reported that, in two days in February 2014,
“violence at the detention centre led to the death of … a 23-year-old Iranian man, and injuries to more than 62 asylum seekers (some reports suggest up to 147 were injured).”
It said in the report:
“There are credible claims that the asylum seekers … were attacked by private security guards, local police and possibly other contractors working at the centre. The response by security guards and local police to protests by asylum seekers was brutal and excessive.”
Amnesty’s report raised a number of concerns about living conditions, including overcrowding, cramped sleeping arrangements, exposure to the elements, as well as a lack of sufficient drinking water, sanitation, food and clothing. The update said:
“Since the violence on … February 2014, Papua New Guinean nationals no longer enter the compounds for catering or cleaning … Asylum seekers are delivered meals in take-away packs for self-distribution and also bear sole responsibility for cleaning the ablution blocks.”
At the time of Amnesty’s site visit in March 2014,
“ablution blocks in all compounds were dilapidated, dirty, mouldy, and”
some latrines were
“broken and without running water.”
Amnesty International expressed concern about the issue, saying:
“Australian and Papua New Guinean authorities are deliberately denying asylum seekers’ right to access lawyers and human rights organizations.”
In an article published by the Australian Institute of International Affairs in February 2017, it was said:
“LGBT asylum seekers are particularly vulnerable … and face significant disadvantages and dangers. In detention they experience discrimination, harassment and violence from other detainees and from members of staff. The detention environment has serious long-term effects on their mental and physical well-being.”
From time to time, Ghana and Rwanda have been floated in the media as places to which asylum seekers in the UK might be transferred, although Ghana has officially denied any such possibility. The appropriateness or inappropriateness of such locations for LGBTIQ asylum seekers is manifest. In Ghana, same-sex sexual acts carry a potential sentence of up to 25 years. There is a current proposal to raise the minimum sentence to 10 years and to require conversion therapy. LGBTIQ people face homophobia, physical violence and psychological abuse.
In Rwanda, same-sex sexual relations are not unlawful, but there are no anti-discrimination laws relating to sexual orientation or gender identity, including in relation to housing, employment and access to government services, such as healthcare. A 2021 report on Rwanda by the Immigration and Refugee Board of Canada cites sources disclosing discrimination and stigma facing LGBTIQ people in religious and civil society, the media and business, harassment by the police and the use of indecency and vagrancy offences against transgender and gender-diverse people. The experience in the offshore detention centres I referred to in Australia and the position in Ghana and Rwanda show the inappropriateness of holding asylum seekers in offshore detention or reception centres.
In particular, the following are not answered in the Bill, the Explanatory Notes or any other guidance from the Government. First, how will asylum seekers have access to legal advisers with knowledge of the law and practice relating to UK asylum claims, assuming that they are being processed under UK law, which is complex and difficult? Secondly, legal aid and advice is available to refugees in the UK, but there is nothing to suggest that it will be available to refugees in offshore holding centres. Thirdly, and as has previously been pointed out, if conditions in the proposed offshore centre are so bad as to cause physical or mental harm to refugees, whether through physical conditions in the centre or—in the case of single women or LGBTIQ members, for example—because of discrimination, harassment, bullying and violence from staff or other asylum seekers, will they be able to have recourse or bring proceedings in the UK, or will they be restricted to such remedies as might be available in the foreign country?
Until these fundamental questions are answered and set out expressly in the legislation, there should be no question whatever of exporting refugees to offshore holding centres. To do so would be inconsistent with the spirit and the letter of the refugee convention and the UK’s own history of welcome to genuine asylum seekers over the centuries.
My Lords, I thank all noble Lords who have spoken to this group of amendments, and I thank my noble friend Lord Kirkhope of Harrogate for tabling his Amendments 100, 101 and 102.
On the back of my noble friend’s point, it might be helpful to clarify the definitions of “asylum seeker”, “refugee” and “economic migrant.” An asylum seeker is a person, either in transit or awaiting a decision, seeking the protection of a state under the terms of the refugee convention. A refugee is a person who meets the definition of “refugee” in Article 1 of the refugee convention—they do not have to be recognised by a state to be a refugee—and so it follows that a “person with refugee status” is a person who meets the requirements under the UK Immigration Rules to be granted refugee status.
The term “economic migrant” is inexact. It may, of course, refer to a person who is using or looking to use economic routes, such as FBIS, to enter a state. However, there will be people who meet the definition of Article 1 of the refugee convention but are looking to enter the UK and choosing it over other countries purely for economic reasons. One of the objectives of the New Plan for Immigration is to ensure that the most vulnerable can be protected, which in turn means that those attempting to enter the UK for economic reasons should use the appropriate routes.
Changes within Clause 28 via Schedule 3 are one in a suite of critical measures designed to break the business model of people smugglers and are the first step in disincentivising unwanted behaviours—for example, by dissuading those who are considering risking their lives by making dangerous and unnecessary journeys to the UK in order to claim asylum. By working to establish overseas asylum processing, we are sending a clear message to those who are risking their lives and funding criminal gangs both here and abroad or abusing the asylum system elsewhere that this behaviour is not worth it. We must make it easier to ensure that such people are simply not allowed to remain in the UK.
It also might assist noble Lords—and indeed my noble friend Lord Kirkhope of Harrogate—to know that for nearly 20 years, it has been possible under UK law to remove individuals from the UK while their asylum claim is pending if a certificate is issued under Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, so this is not a new concept. What this measure does is amend our existing legal framework to make it easier to remove such individuals. I do not know which noble Lord asked this, but Schedule 3 also defines the term “safe third country”.
We will do this by making it possible to remove someone without going through a certification process, providing that the country they are being removed to meets the safety criteria that we have set out in the Bill. Even where we determine that it is generally safe to transfer people from the UK to one of our international partners, every individual in scope for processing overseas will be able to rely on the UK’s obligations under Article 3 of the European Convention on Human Rights, so as not to be transferred to a country where they would genuinely be at risk of inhuman and degrading treatment, just to answer the point of the noble and learned Lord, Lord Etherton.
We have been open and frank about our intentions to pursue agreements which would enable asylum processing overseas. We are working closely with like-minded partners to fix our broken asylum system and consider how we could work together in the future. My noble friend Lady Stroud talked the other day about our relationship with France, and today about some very positive reports in the press about our progress with France. We have a shared recognition of both the urgency and the magnitude of the situation that we are both facing. We will also discuss all options in the spirit of our close co-operation and partnership. My noble friend is absolutely right: President Macron made comments in the French press last week that indicated that France is aligned with the UK on the need to work together to deter crossings, both to save lives and to stop the criminal gangs.
I do not wish to pre-empt the exact form or content of future arrangements more generally, and I will not be drawn into speculation on whom we are talking to, as this would tie the hands of our negotiators. However, I can assure my noble friend that the bottom line is that this Government will act in accordance with our international obligations. To be clear, this means that we will not seek to transfer anyone overseas for asylum processing where to do so would breach the UK’s obligations under the refugee convention or the ECHR, for example.
I turn now to Amendment 101A, from the noble Baroness, Lady Hamwee. These are matters for the negotiating table. What this clause does is amend our existing legislation to make it easier to transfer someone overseas for their claim to be processed, in the event that we secure an agreement with a like-minded partner. Again, to reassure noble Lords, we will remove an individual only where this can be done in accordance with our international obligations.
We cannot accept Amendment 196, from the noble Baroness, Lady Hamwee, which would not have its intended consequence to limit the Government’s ability to remove people with pending asylum claims. I have already set out how it has been possible, for almost 20 years, to remove individuals from the UK while their asylum claim is pending if a certificate is issued under Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Therefore, laying before Parliament a policy statement is unnecessary, as we already have the means to remove someone with a pending asylum claim. There is nothing to be gained from Parliament debating legislation pertaining to the removal of people with pending asylum claims, as this legislation is already in force.
I will turn to some other questions. My noble friends Lady Neville-Rolfe and Lord Horam talked about the systems in Australia and Denmark. As I have said on previous occasions, each state will interpret the refugee convention in its own way, as Australia and Denmark clearly have.
My noble friend Lord Kirkhope of Harrogate also asked about the cost to the UK taxpayer, as did other noble Lords. I am afraid I cannot give an approximation as it is a matter for the negotiating table, which I will not prejudice.
The right reverend Prelate the Bishop of Durham asked about the inhumanity of offshoring. We will continue to uphold our international obligations and ensure that all removals of individuals are compliant with our obligations under Article 3 of the ECHR, which protects against torture and “inhuman or degrading treatment”.
The right reverend Prelate the Bishop of Durham, the noble Lord, Lord Rosser, and the noble and learned Lord, Lord Etherton, asked about children, women and other vulnerable people. Noble Lords are absolutely right that the Minister made our position clear in Committee and on Report in the Commons. I will not go further than what he said there.
The problem is that the Minister only said, “unaccompanied children”, and did not refer to children in families. I am sorry, but we do not have the confirmation that this addresses the whole range of scenarios—such as families being split up—which we have raised but have not been answered.
I thank both the right reverend Prelate and the noble Baroness for those points. Generally, in the asylum system in the UK, when someone is about to turn 18, their status changes.
The right reverend Prelate is absolutely right; I did not answer questions about all children in all situations. On the previous day in Committee, I went at length through the routes by which children and families can come to the UK—there are several routes, and I think I cited four.
My noble friend Lady Stroud asked about victims of modern slavery and human trafficking. We will only ever act in line with our commitments under our international legal obligations, including those which pertain to potential victims of modern slavery.
I understand that the Minister may be unable to respond immediately to the extremely valid question the right reverend Prelate has asked. Presumably, however, the Government as a whole know the answer to his question. Why does the Minister not agree to write to us and tell us what those answers are?
I have said I will write, but to be more explicit than my honourable friend was in the Commons might risk exploitation on routes taken by children. Therefore, this is as far as I will go today. I will lay out the various safe and legal routes through which children can come to this country and reiterate what my honourable friend said in the House of Commons.
I am very sorry but the noble Baroness is not answering the right reverend Prelate’s question. It is not about safe and legal routes but about who will and will not be offshored, which is an awful term. She seems to be saying that children who are accompanied, who are in families, could well be offshored. Is that correct? The Minister in the Commons refused to answer the question and avoided it; I am afraid that is what the Minister is doing here.
I am most grateful and apologise. Can my noble friend say whether she expects that, by the time we reach Report, she will be able to answer that question? Can she also say whether there are any countries with which we are close to agreement and, if so, what countries those are?
I cannot say what countries we are in discussion with, other than confirming to my noble friend Lady Stroud that we are having some very positive discussions with France. On the other question, I cannot acquiesce to going further at this point, because I do not want in any way to make comments that might put children in danger. As I have just said to the noble Baroness, Lady Lister, and the right reverend Prelate the Bishop of Durham, I will write in as much detail as I can following Committee.
I thank my noble friend for giving way. I think I heard that her concern is that saying that children with families would be exempted from being offshored could lead to a fuelling of the trafficking of children to ensure that those families who wanted to travel to the UK would be accepted here. Is that what my noble friend is saying? Some clarity on that would be really helpful, as well as some distinctions in that policy, which obviously she wants to mitigate, and the policy around families who are obviously families—who have proof of it—coming here. Would the Government split them up, let them remain here or be offshored?
I agree with the noble Baroness that we need to strike that balance between abuse of the system and providing refuge to those genuinely in need, but she will also know that we have several family reunion routes, which I went through the other day in Committee. With all that, and the commitment to write to the right reverend Prelate—
I am sorry to intervene just when the noble Baroness thought she had finished. She said that there is already a power to remove asylum seekers while their claim is being considered. Is she referring to when the Secretary of State issues a certificate to say that a claim has no merit and someone can therefore be deported before their appeal is heard? In that case, that is a limited number of people and a very different system from the one proposed here. Can she tell the Committee how many people have been issued with such a certificate and been deported during their application process in that way, compared with the numbers the Government anticipate will be affected by this new proposal?
My Lords, I am sorry, but a whole range of noble Lords asked a question, in different ways, about what happens to the asylum seekers if they are granted refugee status in the country to which they have been offshored. Are they allowed back into this country or are they just left there? If they are left there, they have, in effect, been deported.
My Lords, I thank my noble friend for her responses and all noble Lords for their very important contributions on a really significant part of the Bill. I stand by what I said in my remarks, and I think that others will do so too, despite assurances that we may have received. I would be very grateful if the Government would perhaps be prepared to discuss this matter further between now and Report. On that basis, without further ado, I beg leave to withdraw my amendment.
Amendment 100 withdrawn.
Clause 28 agreed.
Schedule 3: Removal of asylum seeker to safe country
Amendments 101 to 102 not moved.
Schedule 3 agreed.
Clause 29: Refugee Convention: general
Debate on whether Clause 29 should stand part of the Bill.
My Lords, any anxiety that I may have felt earlier this afternoon about the Whip’s injunction to be brief largely evaporated in the distinguished debate that I just heard, because, the more I heard the eloquent succinctness, particularly of noble Lords opposite—the noble Lord, Lord Kirkhope, the noble Baroness, Lady Stroud, the noble and right reverend Lord, Lord Sentamu, and others—the less anxious I felt about initially crossing sections of my notes out and eventually remaining silent. So I feel equally confident about the solidarity and inspiration to come.
With the Committee’s indulgence, I propose to open up this section on interpretation, which goes on for about three groups, but not to pop up on each group; rather, I shall make my points about this whole concept of reinterpreting the convention here. I do so knowing full well that noble Lords from around the Committee will ventilate granular and very important concerns about reinterpreting “social group”, for example, from the disjunctive to the conjunctive approach to trip up some claimants—or about doctoring the burden and standard of proof and turning persecution, in the context of non-state persecution, into something that does not grant refugee protection where the reasonable steps in which the other state is engaged are totally failing, and so on. Initially, then, I will leave others to extrapolate those concerns and, instead, my own part in the collective approach in this Committee will be on the fundamental problem with reinterpreting the refugee convention in this legislation, which begins with Clause 29 and goes on. I hope the Committee is happy for me to make my contribution on that basis.
I have a fundamental objection to the entire approach with this reinterpreting of a shared post-World War II refugee convention, not because I do not trust this country to take control of its borders and laws and so on, but because in order for the convention to work, it has to be an international enterprise, and also because I trust our courts. Although Ministers have said at various points on previous days of this Committee that it is for Parliament, not the UNHCR, to interpret the convention, what they really mean is that it is for the Home Office and not the courts—neither the courts over there, nor the courts here.
What is really going on is that the Government are not taking the approach that they took with the internal market Bill of just being open and honest about an intention to violate international law; they are doing it by this sleight of hand. You could almost call it “violation laundering”, because they will palm it off on Parliament and, once they have done that—once this rewriting of the jurisprudence of the convention has been passed through Parliament—we will be the laundromat: it will be on us that decades and continents-worth of international human rights jurisprudence around this convention will not bite any more to protect those seeking asylum in the UK. I certainly do not want that on my conscience, and I suspect the Committee does not either.
This is wrong because it is a violation of the principle that this treaty has been entered into in good faith, which is obviously a principle of common sense and the Vienna convention, and so on. It is outrageous because it is telling the courts, including our own, that all this jurisprudence that has been built up over years of dealing with cases, with some of the greatest jurists in our history, including Lord Bingham, can go out of the window because the Home Office has a better idea—one which is, of course, designed to trip people up. Let us be clear: it is not designed to extend convention protection to more people; it goes back to the stump speeches we heard from various noble Lords last week about numbers and so on and is not at all about refugee protection and honouring the convention.
I get to the point where I actually think that maybe it would be more honest for the Government to do what some noble Lords have occasionally tempted them to do, which is to put their hands up and say, “We don’t believe in this refugee convention anymore. It is inconvenient and old-fashioned; we don’t like the numbers, and we’re not having any of it.” There is something Orwellian, distasteful and misleading of the electorate to go through these contortions and perversions of language and law.
Maybe other noble Lords in Committee will have a different view of that, but it is coming to the point where these contortions of language and jurisprudence are so obscene and genuinely Orwellian—I know that word is overused, but for me it was never about having six cameras in the street instead of three; for me, it is about Politics and the English Language, Orwell’s greatest work, and the abuse of language that leads to the abuse of people. That is what is wrong with this whole section—it is not in good faith; it is not a reflection of the jurisprudence; it is an attempt by sleight of hand to undermine it.
This is not just terrible in the context of refugee protection, which, given what is at stake, is bad enough; it is really bad for Britain and the rule of law, which is arguably one of our greatest exports—not David Beckham’s left or right foot, not even Shakespeare or Elgar, but the rule of law. It is the reason why, unfortunately, so many oligarchs want to come here, in addition to hiding their money. They want to sue each other in our courts and hire some of our noble and learned Lords to go and judge their arbitrations in secret, because there is something magical and special about our law.
When we share our jurisprudence in good faith with supreme courts and constitutional courts around the world, we are not just affecting refugee protection here but influencing that jurisprudence all over the world; and that is an export too. You cannot measure it in pounds and pence, but you can measure it in a truly global Britain and a better world. There needs to be this international conversation between judges here and over there, in good faith and influenced by each other’s jurisprudence. By reinterpreting the convention, we throw it all out. It is year nought in the Home Office, and all that jurisprudence goes out the window because we have rewritten the convention via this totally offensive clause. Of course, Ministers have an oath, and they are supposed to respect international law—enough said about that.
I am glad that the noble Baroness, Lady Williams, is having a break now, not just because it is good to have a break but because it gives me the opportunity to put a question to the Minister the noble Lord, Lord Wolfson, that I tried to put last night in the context of a different Bill, about whether the Government have already instructed parliamentary counsel on the Bill to scrap the Human Rights Act. In the last group, the noble Baroness, Lady Williams, invoked convention rights, the ECHR and our participation in that in defence, so it is an important question in practical terms, because it can always be said that we will not be sending anybody for Article 3 treatment and so on and so forth. It is also really important because Section 3 of the Human Rights Act requires that all other legislation be read compatibly with convention rights as far as it is possible to do so. In this pandemic period, I have heard noble Lords opposite, and Ministers in particular, invoking that in defence of the CHIS Bill, the overseas operations Bill, the police Bill: “Don’t worry, because remember, there is always the Human Rights Act as a catch-all protection—particularly the interpretation provision but also the duty on public authorities to comply.” If parliamentary counsel have already been instructed to draft the Bill that will scrap the Human Rights Act, we need to read all of this in a slightly different light, do we not? Frankly, even in the light that we currently have, it is bad enough.
My Lords, my name is to the opposition to Clause 29 and the other clauses mentioned in this group as well. Of course, opposing Clause 29 is a consequence of opposing the other clauses, all of which, we say, should go. I have written down “clauses on interpretation”; the term “laundering” had not yet occurred to me, but I follow the point about the interpretation or laundering of the refugee convention. The overall point, as I say, is that they should all go.
On Second Reading, I described it as perverse to use domestic legislation to impose an interpretation of an international convention. Since then, at earlier points in this Committee, we have heard much more powerful, analytical, legally informed responses, and, though I am speaking before the contributors to whom I am referring, I think I would be much better following them—that is not intended to be at all disrespectful to the Minister, nor indeed to the very experienced lawyer from whom we have just heard. The humanitarian arguments have been very well put, but the short point I took away from an earlier day is inarguable. We are party to the convention: it is our law; it is well-established law. If we were to leave the convention—which, of course, I am not advocating—that would be another matter. But we have not left it, and I hope we are not going to.
The proposed interpretations are not simply a collection of different bits of law; they rewrite the whole of it in a way that undermines the spirit and intention of the convention and—there is a lot of agreement on this in the Committee, I believe—in a manner inconsistent with international standards. We will become out of step with the internationally accepted interpretations and out of step with the international community, or, at any rate, those parts of the international community that we want to be in step with.
I turn from the macro to the micro, although it would not seem micro to the people involved. On Clause 35, which deals with Article 1(F) of the convention, perhaps the Minister could say whether I am correct in my assumption, as I think I must be, that the other parties to the convention have not agreed a variation; otherwise, the clause would not be there, as it could be dealt with internationally. This is the provision about what is meant by a “serious non-political crime”, which has impacts for the application of the convention, which does not to apply to, among others, a person who
“has committed a serious non-political crime outside the country of refuge prior to his admission to that country”.
I understand from the statement issued by the UNHCR that the purpose of Article 1(F) is to deny the benefits of refugee status to people who would otherwise qualify but are “undeserving of such benefits” for that reason. This is
“to ensure that such persons do not misuse the institution of asylum in order to avoid being held legally accountable”.
The position is
“to protect the integrity of the institution of asylum”
and this should be applied “scrupulously”.
I was quite intrigued by this. I had to stop myself pursuing reading about it because it would have taken me far too long, but am I right in thinking that this is an outcome of the case AH (Algeria)? I am sure that the Minister has a briefing on this. I understand that the facts there concern the difference between courts of different countries and that signatory states are
“not free to adopt their own definitions”
of what constitutes serious crime. That is what the Court of Appeal had to say. Of course, that does not answer my point about unilateral interpretation.
Unless the Government have a change of heart, I cannot see that we will not be returning to this on Report, so all the excellent briefing that we have received can wait until then. We have been given such great tutorials and I think that we will receive more. All that briefing has been welcome but may not have been necessary.
My Lords, I shall continue to limit my interventions in Committee to expressing views that I hold simply as a lawyer, the course I took on Tuesday of last week, when we were discussing Clause 11. That gave us an early introduction to the very provisions with regard to reinterpreting the convention that we are now concerned with. I reserve the right, when we come to Report, to come in on what I regard as the more obviously mean-spirited and ill-judged other provisions, which are, as is patent, designed to deter as many as possible of those who would otherwise wish to seek refugee status in this country.
Clause 29, as has already been pointed out, is an omnibus provision that takes you into further and more specific, and therefore more specifically objectionable, provisions, which take the convention apart and reinterpret it piece by piece. As both noble Baronesses have said, that is itself intrinsically an objectionable way to proceed with regard to one’s legal obligations.
There are three further stand part notices in this group. I will not touch on all of them because time is the enemy today, as it will be on Thursday. On Clause 33, the protection from persecution, as the Bingham Centre for the Rule of Law has valuably pointed out, this clause fundamentally changes the approach to protection from persecution from a focus on meaningful and effective protection against persecution, which our long-established jurisprudence establishes is the correct focus, to a focus on the existence of a reasonable system to prevent, investigate and prosecute instances of where, despite the system, there has been persecution. This refocusing mischievously—and, I suggest, in legal terms, fatally—sidesteps the all-important question of whether the system is likely to protect the individual concerned.
In the interests of time, rather than make comparatively lesser points on the other two named clauses, Clauses 34 and 35, I will pass on. I say only on Clause 35, mentioned by the noble Baroness, Lady Hamwee, that this is directed to Article 1(F) of the convention. Clause 35(2) goes to Article 1(F)(b), concerning serious non-political crimes, and we will come in the next group to Clause 37, which deals with Article 33 of the convention on non-refoulement. Whatever the position on non-refoulement that may be arrived at under the refugee convention, even if, for example, the asylum seeker was found to be a war criminal and so is denied refugee status under Article 1(F)(a) of the convention—see Clause 35(1) of the Bill—it still is not possible to return that person to their country of origin if they would be persecuted. That is simply precluded by Article 3 of the ECHR.
I have had a helpful exchange of emails with the Bill manager. I asked the Minister at our Cross-Bench meeting a question which she referred to the Bill manager; namely, whether any of these provisions in the Bill were intended or calculated to alter any of the well-established and authoritative case law in this country. Except for one point which the Bill manager made regarding Clause 37, which corrects an ambiguity that arose under Section 72 of the 2002 Act, I am unpersuaded that where there is a recognised departure from our case law, it is properly made under this Bill. I finish at this point.
My Lords, I have been here for only eight years, which is not long in your Lordships’ House, but I have never seen so many attempts to delete clauses from a Bill—and of course that is completely the right thing to do here. With this Government, I always look for dead cats being thrown on the table to distract us from something much worse that is happening under the table, but there are so many dead cats in this Bill that I am assuming they are all genuine bits of the Bill that the Government want to pass, which is quite disturbing.
Here the Government are trying to unilaterally rewrite international law, and they are doing so to appease the far right, both in their party and in the country. That is a pointless thing to do; you will never appease the far right. It is an example of the Government throwing away decades of international progress on domestic and international policies only to appease a segment of society who are outspoken and noisy—like the Greens, I suppose, but, unlike the Greens, they actually have malign intent.
We are sending a signal to the world that we are not competent to run our country any more, and certainly not worthy of being part of any international grouping that believes in progress and the rights of the human being.
My Lords, I add my voice to those of the noble Baroness, Lady Jones, my noble and learned friend Lord Brown of Eaton-under-Heywood, and the noble Baronesses, Lady Hamwee and Lady Chakrabarti, in saying to the Minister, for whom I have considerable respect—I know of his own track record in the area of international law and the upholding of human rights—that beyond the legal arguments that have already been put to him is the reputational damage to this country, not least because of international issues, some of which he will be aware of.
Anything that we do to dilute our commitment to the 1951 convention on the treatment of refugees—any unravelling or unscrambling of our commitments—is to be deplored. I will give two examples to the Minister. I co-chair the All-Party Parliamentary Group on North Korea and am vice-chair of the All-Party Parliamentary Group on Uyghurs. In the case of North Korea, we, the United Kingdom, will regularly raise with the People’s Republic of China the refoulement policy of sending North Koreans from the PRC, to which they have escaped, back to North Korea, knowing that terrible things, including executions, will happen to them when they are sent back—a clear dereliction of the commitment to which the PRC signed up in the 1951 convention on the treatment of refugees.
In the case of Uighurs, Turkey is presently considering sending back Uighurs because of an agreement that it has reached with the People’s Republic of China. Everyone in your Lordships’ House—notably the noble Lord, Lord Anderson of Ipswich, who is in his place; he raised this issue with me as recently as last week, in another debate—is well aware that there are 1 million Uighurs in detention centres and camps in Xinjiang, and we know of terrible atrocities that have occurred. Our own Foreign Secretary has said that a genocide is under way. In that context, for any country, and in the case of Turkey a NATO country, to be sending people back, again in violation of its duties in the 1951 convention, seems to be deplorable. However, the United Kingdom can hardly start lecturing others not to do these things if we ourselves are going to unscramble and diminish the importance of the 1951 convention.
I suppose that, as a post-war baby, I have maybe too much admiration for what was not entirely a golden age, but think about all the things that were put in place at that time: everything from the Marshall aid programme to the 1948 Universal Declaration on Human Rights, with its 30 articles that set out our rights on an international basis, and the 1948 convention on the crime of genocide. Given all those things that have been put in place, we should think extraordinarily carefully before we do anything to diminish or dilute them. That is why I hope the Minister will give proper consideration to the interventions that he has heard so far—I am sure he will—and, between now and Report, see what more we can do to ensure that we do nothing to diminish the importance of the 1951 convention.
Yes; not for the first time I agree with the noble Baroness, Lady Hamwee. It was British lawyers who crafted these things. Look, for instance, at the Nuremberg trials and the role of people such as Hartley Shawcross, who was the Labour Member of Parliament for St Helens, and the law officers from the United Kingdom in the establishment and creation of these things. They were a gift to many other nations. That is why we should be holding and enhancing them, not doing anything to diminish them.
My Lords, I struggle with some of the dilemmas presented by Clauses 29 to 37, for very much the reasons given by the noble and learned Lord, Lord Clarke of Nottingham, in his frank and powerful speech of 1 February on Clause 11. There are, after all, circumstances in which Parliament may legitimately set out its interpretation of treaty provisions and overrule decisions of our courts. There is also a desire, which others on these Benches may share, to give the Government the benefit of the doubt if they can show us why their proposals are not in breach of international law.
The problem I have in that regard is that we have seen impressive formulations of the case against these clauses: for example, from the UNHCR, in the opinion of Raza Husain QC, and in the briefing from the Bingham Centre to which the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has referred. What we—or at any rate I—have not seen is how the Government seek to justify these clauses against the requirements of the refugee convention, as interpreted by the Vienna Convention on the Law of Treaties.
For example, under Article 31.3 of the Vienna convention the interpretation of a treaty can legitimately be influenced by state practice. Do the Government rely on the statute or case law of other states as support for the interpretations that they ask us to enact? If so, which states and in relation to which clauses of the Bill? Do they say, in relation to each relevant provision of the refugee convention, that those practices establish
“the agreement of the parties regarding its interpretation”
within the meaning of Article 31.3(b) of the Vienna convention?
As a second example, the United Kingdom made various reservations and declarations at the time it ratified the refugee convention. Do the Government contend that these clauses, or some of them, constitute de facto reservations in so far as they purport to constrain, as a matter of law, the interpretation or application of the refugee convention? In that case, what are their arguments for their timeliness and permissibility and, if they are permissible, their compatibility with the object and purpose of the convention?
I appreciate, of course, that there are conventions regarding the publication of law officers’ legal advice, but surely a way can be found of conveying to your Lordships, and to the public, a detailed and authoritative explanation of the Government’s legal position in more detail than can be explained, however lucidly, by a very lucid Minister in this Chamber. Whether such advice will be enough to allay the concerns of those of your Lordships who take seriously our obligations under international law I cannot say, but at least these clauses will not be lost by default, which I suspect may be the alternative if we are left in the dark.
My Lords, if I may intervene briefly, I am not an expert in this field but once the lawyers start quoting clauses, sub-clauses and those sorts of things, one has to be careful. This is obviously an important point, and I was really taken by the speech of the noble Lord, Lord Alton. He has spent a lot of time on this and one has to respect the work he has done. He talked about us unscrambling. When my noble friend comes to wind up, can he say whether we are unscrambling or simplifying?
Some of the way this seems to read is that we are making a thing clear for everybody. Therefore, far from undermining what we stand for, we are making it clearer for everybody, and as such for the people of this country, to understand what the Government are trying to do, and thereby increase the degree of informed consent—a concept about which I am very keen. I understand the complications of the legal interpretations put forward by many noble and noble and learned Lords, but I would like my noble friend to tell me: are we simplifying or unscrambling? If we are simplifying, that seems a desirable thing to do.
My Lords, taking up what the noble Lord, Lord Hodgson of Astley Abbotts, just said, my lay and naive understanding of international conventions, such as the refugee convention, is that processes of clarifying or simplifying should involve international co-operation and coming to a global agreement over what those interpretations, clarifications and simplifications are.
Amnesty and Migrant Voice put it differently. They say:
“Clauses 29 to 38 constitute an attempt by the Home Office via legislation to unilaterally re-write the UK’s international refugee law obligations and, in doing so, reverse the decisions of the UK’s highest courts”.
As I have said before in this Committee, international conventions, as far as I am concerned, serve no purpose unless the signatories abide by a common understanding of what the convention means. Any deviation from the settled and accepted interpretation of an international convention must be agreed universally, not unilaterally, as these clauses attempt to do. Any attempt by the Bill effectively to rewrite what it means could result in the UK breaching its international obligations and we believe that none of these clauses should stand part of the Bill.
As has been said, this part of the Bill provides for “interpretation” of the refugee convention. It includes some entirely new provisions and replicates or amends some existing provisions.
On existing provisions, this part of the Bill repeals the Refugee or Person in Need of International Protection (Qualification) Regulations 2006. These regulations transposed a key EU directive on standards for asylum systems, the qualification directive, into UK law. The Bill repeals the regulations and puts versions of the provisions into primary legislation instead.
The UNHCR noted with concern the Government’s approach to interpreting the refugee convention. I will read an extract from its legal observations on the Bill in full. It said:
“We note with concern the Government’s approach to interpreting the Refugee Convention. Any treaty must be ‘interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’ In the case of the Refugee Convention, as the UK Supreme Court has noted on more than one occasion, ‘There is no doubt that the Convention should be given a generous and purposive interpretation, bearing in mind its humanitarian objects and the broad aims reflected in its preamble.’ In addition, the Vienna Convention specified a range of sources that ‘shall be taken into account’ in interpreting a treaty; these all reflect the agreement of the parties, and include other agreements and instruments from the time the treaty was concluded, as well subsequent agreements, State practice and international law. In other words, States cannot, under international law, unilaterally announce their own interpretation of the terms of the agreements they have made with other States. This, too, has been repeatedly recognised by the House of Lords and the Supreme Court of the UK.”
I do not want to repeat what has already been said, but I just ask: do the Government agree with that extract from the UNHCR’s legal observations on the Bill? If they do agree with it, do they believe that they are still abiding by it?
My Lords, I am grateful to all noble Lords who have taken part in this debate.
The starting point is that we are no longer members of the European Union and, by extension, the Common European Asylum System. In response to the point made by the noble Baroness, Lady Hamwee, these provisions are not a direct response to the case of AH (Algeria). They are about having an opportunity to define clearly and unscramble refugee convention terms following our exit from the EU. It is right that, at this time of legal change, we take the opportunity to reassess the operation of our asylum system and reconsider our approach not only to fundamental policies but to processes, so that we can create a clearer and more accessible system.
The fact is that the development of the asylum system through international conventions, European law, domestic legislation, Immigration Rules and case law has created a complex legal web that can be difficult to understand and apply; that goes for claimants, decision-makers and the courts. I do not propose to use props—I understand that that is not permitted—but, for my own assistance on a later group, I brought a book called, rather laughingly, The Immigration Law Handbook. We consider it a desirable law reform to define clearly key elements of the refugee convention in UK domestic law. In response to my noble friend Lord Hodgson of Astley Abbotts, that is exactly what we are doing. We want to make the position clearer for everyone, including decision-makers and the courts.
A lot has been said that touches on the same point but, with great respect, the noble Baroness, Lady Chakrabarti, perhaps put it most forcefully. She used a number of metaphors. Let me respond to them. This is not about tripping anybody up. It is not a sleight of hand; it is difficult to do one of those on the Floor of your Lordships’ House. This is about bringing clear definitions before Parliament and having them all in one place. The central point is this: there is nothing wrong—indeed, I suggest that there is everything right—with the UK, through this Parliament, interpreting its obligations under the refugee convention. That is entirely lawful. I use “lawful” in both its narrow and wide senses. It is lawful in the sense that it is in accordance with the law; it is also lawful in the broader sense of being in accordance with the political or constitutional principle that we call the rule of law. Further, it is in accordance with the Vienna convention. Everything we are doing complies fully with all our international obligations, including the refugee convention and the European Convention on Human Rights. I will come back to the question that the noble Baroness asked me in that regard a little later.
With respect to the noble Baroness, Lady Hamwee, it is not perverse to use domestic legislation to give effect to and interpret international treaties. I assure the noble Baroness, Lady Jones of Moulsecoomb, that I am not in the business of appeasing the far right; nor am I in the business of deleting obligations under international law. Many of the definitions, which repay careful reading, are very similar to those already used in the UK—for example, those contained in the 2004 qualification directive, which was transposed into UK law via the 2006 regulations.
I am grateful to the noble Lord, Lord Alton, for his kind words. I assure him that I of course give proper consideration to international reputational impacts, but surely there can be no adverse impact by complying with international law and interpreting treaties in accordance with the Vienna convention.
I am sorry, I missed my moment; I should have spoken as soon as the Minister spoke to me. I did not accuse him of trying to appease the far right. I hope I did not say that—I certainly did not mean to—but I do accuse the Government of it. I know that the Minister did not write this Bill, but that is something I see the Government as guilty of.
I did not take it personally. I agree that I did not write the Bill. It would be a far worse Bill, and the noble Baroness would like it even less, if I had written it. But I replied in that way because I take the view that if I am standing here defending government policy, then I will stand here and defend government policy. I certainly would not defend a government policy which was simply appeasing the far right. So, that is why I replied in those terms. I know that the noble Baroness was not making a personal attack; I did not take it that way.
To finish my point to the noble Lord, Lord Alton—
My Lords, I do not want to get into the question of whether the Bill is going too far or not far enough, and whether our policy is good, bad or indifferent, on this group of amendments. If I may say so, those are Second Reading-type questions. I was simply responding to the point put by the noble Baroness.
To return to the point on Turkey, whether its acts are in accordance with the refugee convention is really a separate issue. I do not mean to diminish or demean this, but what we are talking about here are not acts, so to speak. We are talking about the fundamental question of whether it is proper—because the charge put against me is that it is not—for this Parliament to set out its interpretation, the UK’s interpretation, of the international obligations we have under the refugee convention.
Before the Minister leaves that point, I was not specifically asking him to respond to Turkey’s actions. I was saying that it diminishes our ability to speak to countries such as Turkey or China—which I also referenced—if we are ourselves een to diminish our responsibilities under the 1951 convention. That comes to the question that the noble Lord, Lord Rosser, put about how this is seen beyond our shores by international institutions that have examined what we are trying to do. I hope the Minister will address that point as we proceed.
I was going to come to the point made by the noble Lord, Lord Rosser. Let me just say a sentence about it now: the UNHCR is not the interpretive body of the refugee convention. Each state under the convention is there to interpret its obligations, in accordance with the Vienna convention. That is the system which the state parties have set up. When we have a phrase—we will get to one a little later—such as “serious non-political crime”, the state parties have to interpret it. We will get to an example in the next group—this is a little cliffhanger—of where different countries have approached the question differently. There is nothing wrong with that, provided that they are all acting in accordance with the Vienna convention in good faith in seeking to interpret their obligations.
Respectfully, I think that the noble Lord, Lord Anderson of Ipswich, essentially accepted that basic proposition under the Vienna convention, and he was obviously right to do so. He sought characteristically carefully—if I might say so—to seek disclosure of the legal advice on which the Government are relying, while recognising the conventions which apply to that. I listened carefully to what he said. I will read Hansard to see whether there is anything more I can say in writing to him; I do not want to rush from the Dispatch Box. There may or may not be anything more I can say, but I will read that point carefully. I think he recognised that there are conventions in this area which do apply.
However, I say to the noble Lord, Lord Paddick, that it is not a question of having to agree with all the other signatories. This is not about amending the refugee convention; it is about interpreting it. That is a very different thing. If you want to amend a contract, you need the other party’s agreement, but interpreting a convention is for each state party.
I will say a few words about the substantive clauses, although I think it is fair to say that those were not really the Committee’s focus. Clause 29 sets out how key terms which are defined in the following clauses will be applied; they are the key components of the refugee convention. Clause 29 also revokes the Refugee or Person in Need of International Protection (Qualification) Regulations 2006. Those are the regulations through which we transposed our obligations under the EU qualification directive 2004. Because we are out of the EU, we need to do that in a different way.
However, we will continue to grant humanitarian protection to eligible individuals who cannot be removed from the UK to their country of origin if their removal would breach the UK’s obligations under Articles 2 or 3 of the ECHR. It is important to clarify—I am sure Members of the Committee know this—that these are not individuals protected under the refugee convention. However, we will make further changes to align the entitlements of permission to stay granted on the basis of humanitarian protection to that provided to group 2 refugees.
In response to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, we believe that Clause 33 provides a system of effective protection from persecution. Clause 34 deals with relocation, but I do not think any noble Lords spoke to it directly, so I will just refer to it and move on.
On Clause 35, of course we have a proud history of providing protection to those who need it, but that should not apply to those who commit serious crimes, putting the communities that host them at risk and endangering national security. We believe we are right to define and legislate in this area. I say to the noble Baroness, Lady Hamwee, that that is a good example of serious non-political crime. That is a phrase in the refugee convention, but it is not further defined in it. Each state has to look at it and define it, in accordance—always—with the Vienna convention.
The Minister keeps saying that each state will define the refugee convention, and he alluded to the EU qualification directive; there is also the procedures directive. I declare an interest, as I worked on both directives as an MEP. Of course, that was an attempt not for each state in the EU to do its own thing but to have a collective set of laws which interpreted the refugee convention in detail and, as far as I know, complied with it. That prevented each country doing its own thing in a potentially destructive way.
I have an associated point, to save the Minister bobbing up and down too much. I entirely take the point about non-political crime. I just wanted to make it clear that I was referring only to that bit of the Bill when I mentioned the case. I was not suggesting that it was the prompt for the whole of this part. But can the Minister explain more about the impact of our leaving the EU? Does that give us a legal opportunity, or is this happening because it is a convenient political point in the calendar, as it were?
On the first point, of course the EU sought to interpret the refugee convention for all its members. But that actually makes my point, because it is only for the members of the EU. All the other states will interpret it in their own way. If you want to hand over your interpreting power to the EU, that is fine if you are a member—but I suggest that that does not cut across my basic point.
As to the effect of leaving the EU, if we have hitherto signed up to various interpretations through EU regulations, we now have an opportunity to look at the matter afresh, as I said when I began. To go further into that point would go way beyond the scope of this group.
Finally, I come back to the question put to me by the noble Baroness, Lady Chakrabarti, about “scrapping” —I think that was the word she used last night as well—the Human Rights Act. I said last night, and I will give the same answer now, that the Human Rights Act brings into English domestic law the European Convention on Human Rights. We have reaffirmed— I did it yesterday; I will do it again now—that this Government will stay in as a signatory to the convention.
I am grateful to the Minister for that, but will he answer my question a bit more specifically? Has he instructed parliamentary counsel to begin the drafting process for the Bill that will replace, repeal or reinterpret the Human Rights Act and/or the convention on human rights?
As a matter of policy, I am afraid I am not going to get into the discussions I have with government law officers and parliamentary counsel. The Government’s legislative programme has been set out. The Lord Chancellor, the Deputy Prime Minister and I have given evidence on this. We have made it clear that we will be staying in the European Convention on Human Rights. In so far as the burden of the noble Baroness’s challenge was that we have to be careful, because the Government are watering down rights, we are staying in the European Convention on Human Rights. Therefore—
I was going to wait until the Minister had finished his sentence but, before he sits down, I revert to the question of the Government’s legal case. The Minister is reticent to disclose government legal advice, which I entirely understand but, before the Committee and others can reach a fully formed opinion on this, they need a worked version of the Government’s legal position. It may be that that takes the form of a position paper or submission, rather than the replication of advice already given. But, until we see in detail what Raza Husain and the UNHCR got wrong, and why these interpretations are fully consistent with the Vienna and refugee conventions, the evidence is all one way. I am sure that I speak for many other noble Lords when I say that I would be very much assisted by seeing something of that nature.
I hope the noble Lord does not take it amiss if I say, with respect, that he makes the same point as he made earlier. and I understood it. I need to be very careful that I do not get inadvertently drawn into disclosing legal advice, but I hear the point from the noble Lord that he and others would like to see a greater fleshing out of the Government’s legal position. I have said that I will see what I can do to assist in that.
Very diffidently, am I entirely wrong in thinking that, under Article 35 of the convention, some heed is required to be paid to the UNHCR’s expression of its approach to the convention? My recollection is that Lord Bingham said as much in one of the cases I mentioned last week, Asfaw. Is that not right?
Respectfully, what I said earlier is that it is not the arbiter of the interpretation of the convention. I do not think that is inconsistent with the point the noble and learned Lord just made.
I was proposing to sit down, after suggesting to the Committee that we should keep these various clauses in the Bill.
Before the noble Lord sits down, I was wondering whether he would explain some of the changes that are being made or cover them in a subsequent letter. As I understand it, Clause 33 replaces Regulation 4 in the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, which is repealed by Clause 29. The wording is largely the same but, as I understand it—and I may be wrong—the existing regulations reference
“protection from persecution or serious harm”,
whereas Clause 33 references only “protection from persecution”. Why has that change to the language been made and what will its practical effects be?
There are changes of language in other areas, such as from a “may” to a “must” in Clause 34. What problem is that intended to solve? Is it not the Government’s intention to explain the reasons for the changes they have made where they have made them?
The “may” and “must” point, to which the noble Lord referred, will come up in a later group because, from memory, there is a specific amendment on it. I was proposing to deal with that when I respond to that amendment. I think we are going to come to the persecution and serious harm point later but, if I am wrong, I will write to the noble Lord and explain it. However, we are coming to “may” and “must” on a later group.
I am grateful to all noble Lords who contributed to this group. I believe there was a great deal of consensus in the Committee, but I am sure the Minister was grateful for the support of his doughty and always agreeable noble friend the noble Lord, Lord Hodgson of Astley Abbotts.
I say to the Minister that asserting does not make it so. Asserting, reasserting, “We’re in the convention” and “We will honour the convention” are not enough in the face of the very detailed analysis of these provisions by the UNHCR, the Bingham Centre, Raza Husain QC and, if I may say so, the noble and learned Lord, Lord Brown of Eaton-under-Heywood. The noble Lord, Lord Anderson of Ipswich, again in his always agreeable way, was trying to help the Minister out. The Minister might take his hand and shake it. It is not a hand, it is a lifeboat, but I will be told off again for using metaphors. Last week I was told of by the Minister for using the word “tawdry” too many times; I thought I was on “Just a Minute”. Today, it is metaphors.
I will try one more metaphor with the noble Lord, Lord Hodgson of Astley Abbotts, who asked a very pertinent question of the Minister. Is this not a simplification, rather than a dilution or repudiation? I believe the noble Lord comes from a business background and has often referred to the Wharton school of business. We all draw on our experience and I think a basic contract is not a bad analogy to draw here. It is the equivalent of the chief executive of a company that has been in a contractual relationship with another company for many years getting a bit fed up with various provisions of this contract that has nevertheless been working. We are talking 50 or 70 years of this contract between the parties, when the chief executive thinks, “Maybe we need to reinterpret the various articles of this contract”. He decides not just to repudiate it, because that would be embarrassing, illegal and unlawful, but he says to his board, “What we are going to do in the boardroom is reinterpret all the provisions in a way that is different from the way that we ourselves have honoured them in the past”. “We ourselves” include learned judges such as Lord Bingham and others from all over the world. We are now going to year nought and are rewriting it. We are not just simplifying; we are making material differences, in some places to the convention and in others to decades of jurisprudence, by changing “or” to “and” and changing standards of proof. This is not insignificant.
The noble Baroness’s description of how business works, with an agreement that has lasted for a number of years, is far from the reality of any business in which I have ever worked. It is not a good analogy to use with my noble friend on the Front Bench. There may be all sorts of reasons, as we have heard, about international law, European law, UK law, UK primary legislation and UK secondary legislation, all of which cut across. They are completely different from a single arrangement in business, in which there is a contract, of one sort or another, between two firms. This is not a good analogy at all. I much prefer the complications, which my noble friend referred to, seeking to sort this out.
Forgive me; I stand corrected by the noble Lord, Lord Hodgson of Astley Abbotts—as always, certainly in matters of business. I was merely trying to suggest that we cannot repudiate a contract by pretending that we are reinterpreting it, when we are making material differences to the relationship between the contracting parties.
Finally on the UNHCR, it is set out in Article 35(1) of the refugee convention:
“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.”
Clause 29 agreed.
Clause 30 agreed.
Clause 31: Article 1(A)(2): well-founded fear
103: Clause 31, page 34, line 45, leave out subsections (2) and (3)
Member’s explanatory statement
This amendment would give effect to the recommendation of the Joint Committee on Human Rights that the standard of proof for an asylum seeker to establish a well-founded fear of persecution under the Refugee Convention should remain a composite standard of “reasonable likelihood”.
My Lords, I shall speak to Amendments 103, 104 and 111 in particular, but before I do so, I want to say that, having listened to the Minister in the previous debate, it seems that he has almost answered the points that I was going to make. I do not want to be repetitive, because the Chief Whip asked us to be brief. A lot of the key points of principle that were covered in the previous group of amendments are also covered in this group starting with Amendment 103, so I shall be brief.
I was a little surprised—and this has gone right through our debates on this Bill—at the Minister saying that we can interpret the Geneva convention as we wish, that we are quite free to do it and that the UNHCR does not have any authority to indicate what is right and what is wrong in terms of the convention. I had always been brought up to accept that the UNHRC was in fact the guardian of the Geneva convention, and that it is the authority rather than each country doing its own thing. If each country does its own thing by interpretation, we shall not have an international convention at all and achieving international agreement will be much more difficult. Having said that, I was dismayed at the Minister’s view and equally dismayed when he said that the Bill would be even worse if it was his own Bill—I think that is what he said. I hope then that he does not have too much influence on things.
On Amendments 103 and 104, as I understand it from our deliberations in the Joint Committee on Human Rights and what it says in its report—I am still a member of that committee and contributed to the reports—the decision-maker need only be satisfied that there is a reasonable likelihood of persecution as defined by the refugee convention. That seems to be the present practice. However, the Bill seeks to change that—it talks about things like the “balance of probabilities”—by limiting the effect of the reasonable likelihood of persecution provision and making it harder to achieve an effective decision about asylum in favour of the applicant.
It seems to me that the Government do not like the Geneva convention and are seeking by a series of measures throughout the Bill to weaken it. That is clever if you want to get rid of the Geneva convention. The Government will say that they stick by the convention, but by being able to interpret it in all sorts of ways one can effectively weaken it to the point where it would be a different convention from the one which we have traditionally come to accept. I think that is what the Government are trying to do. I do not think the Minister will necessarily agree, but I suspect that is what it is.
Amendments 103 and 104 relate to the change from “reasonable likelihood” of persecution to a “balance of probabilities”, which is defined in various ways which I shall not go through now. Amendment 111 is about criminality and serious crime. It has always been possible, even within the Geneva convention, for Governments to deny asylum to people who have committed a very serious crime. That has been the practice. It has not happened very often, but the Government are now seeking to redefine that provision so that a serious crime becomes something lesser than what we traditionally regarded as a serious crime—in other words, again weakening the Geneva convention. That is regrettable. I do not think that the Government had any need to weaken the convention in this way, by a process of interpretation, so I regret that, which is why I am keen on these and other amendments.
My Lords, I followed with great interest the noble Baroness, Lady Chakrabarti, in speaking eloquently to the clauses stand part in the last group. Like the noble Lord, Lord Dubs, I shall speak only to a particular amendment, that put forward by the noble Baroness, Lady Chakrabarti, to which I have lent my signature, as have others. Once again, I am grateful to the Law Society of Scotland for its background briefing, and I shall refer briefly to the report of the Constitution Committee in which its concerns were quoted.
I am grateful to the Law Society of Scotland for highlighting its concerns, which I share. This is a probing amendment to understand the background following on from my noble friend’s summing-up in response to the previous group. I find myself half way between my noble friend Lord Hodgson, who is not a lawyer, and the noble Lord, Lord Anderson, who is a lawyer of some repute. I am a member of the Faculty of Advocates but have not practised for a considerable period. However, I enjoyed the one case on which I was a junior before the European Court of Human Rights—the proceedings were very similar to those enjoyed in our erstwhile proceedings when the House of Lords enjoyed the right of final appeal.
The reason why I believe that Clause 31 does not fit well with the Bill goes back to the standard of proof test set out in the leading case for asylum cases, Ravichandran v Secretary of State for the Home Department, as a “well-founded fear of persecution”. In the Court of Appeal in 2000, it was confirmed that the standard of proof in civil proceedings—the balance of probabilities referred to in Clause 31(2)—was not suitable for immigration matters. Instead, what was important was making an assessment of all material considerations such that it
“must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur”.
Lord Justice Sedley described the balance of probabilities as
“part of a pragmatic legal fiction. It has no logical bearing on the assessment of the likelihood of future events or (by parity of reasoning) the quality of past ones.”
For the past 20 years, the approach taken in the Karanakaran case was consistently followed by the courts. In Scotland, the Outer House of the Court of Session reaffirmed that case as the correct standard of proof approach to be applied in the case in 2020 of MF (El Salvador) v Secretary of State for the Home Department. In that case, it was held that the First-tier Tribunal judge had erred in law by applying the wrong standard of proof in respect of an application for permission to appeal brought by an asylum seeker.
In Kaderli v Chief Public Prosecutor’s Office of Gebeze, Turkey, in 2021, the High Court reaffirmed, while referencing the Karanakaran case, that the question as to determining a well-founded fear of persecution is that of an evaluative nature about the likelihood of future events. In that case, it was held that the judge erred in holding that it was for the appellant to prove on the balance of probabilities that the corruption alleged had occurred. The true test involved the application of a lower standard: whether there was a real risk that the appellant’s conviction was based on a trial tainted by corruption. This was consistent with the approach to the fact-finding in the immigration context.
In the view of the Law Society of Scotland,
“the change in clause 31 appears to go against the intention of the New Plan for Immigration, and flies in the face of 25 years judicial scrutiny.”
So my question to my noble friend the Minister, in summing up this evening, is: on what basis are the Government prepared to set aside the cases that I have set out this evening?
I conclude by referring to the conclusions of the Constitution Committee in its report on the Bill of January 2022. It refers to the concerns of the Law Society of Scotland that I have set out today, as well as of the Law Society of England, which criticised the provision set out in Clause 31 in the following terms:
“the Bill changes the evidentiary threshold for asylum claims, in a way that will likely see genuine refugees barred from being granted asylum, as well as delays and an increase in litigation as the parameters of the new requirement are established.”
Paragraph 53 of the Constitution Committee’s report states:
“The House may consider that the new test in clause 31(2) is unclear and unduly complex. If the House takes the view that it is also a potential risk to justice it may be minded to replace it with a single test of, for example, reasonable likelihood.”
In setting out the arguments this evening, this gives my noble friend the Minister the chance to set out precisely why the Government are seeking to change tack, as set out in Clause 31, setting aside the case law that has curried favour in the law courts on both sides of the border—in England and Scotland—for a considerable number of years.
My Lords, I will speak to Amendment 105 in my name and those of the noble Baroness, Lady Coussins, who cannot be here tonight, the right reverend Prelate the Bishop of Gloucester and the noble Lord, Lord Paddick, to whom I am grateful. I also thank Women for Refugee Women and ILPA for all their work on this amendment.
The amendment would remove the narrow restrictive and requirement in Clause 32 that, in order to qualify under the “particular social group” grounds of persecution for recognition as a refugee under the convention, two conditions must be met. The amendment would replace this with an either/or condition. As I will explain, this would be in line with international standards and UK case law.
This is a small amendment, but it is significant, as the UNHCR has made clear. The UNHCR explains that Clause 32 is one of a
“series of changes that would make it more difficult for refugees who are admitted to the UK to be recognised as such.”
The case for the amendment is, in effect, set out in its detailed legal observations, which have been invaluable to our scrutiny of the Bill. The UNHCR warns that narrowing the definition of “particular social group” in the way that the clause does
“could exclude some refugees from the protection to which they are entitled … In the UK and other jurisdictions, the particular social group ground has proved critical in the protection of those with claims based on gender, sexual orientation, gender identity, status as former victims of trafficking, disability or mental-ill health, family and age.”
This view is endorsed by the Bingham Centre, which warns:
“The result will inevitably be to refuse protection to people who, as a matter of international law, are refugees.”
It picks out this clause as one of a number that are particularly troubling to it from a rule of law perspective.
The UNHCR explains the origins of the two conditions and why it has recommended that they should be treated as alternative, rather than cumulative, tests. The argument was endorsed by the late Lord Bingham, acting in his judicial capacity, when he ruled that the cumulative approach taken in Clause 32 was wrong because
“it propounds a test more stringent than is warranted by international authority.”
Thus this approach, the UNHCR points out, has been affirmed in the UK courts over an EU interpretation. I cannot resist observing that it is rather odd that a Government committed to taking back control from the EU is so keen to apply an EU interpretation that has been rejected by the British courts. Indeed, on the previous group, the Minister said that our starting point should be that we had left the EU, so could he perhaps explain why that does not apply to this clause?
In their briefing, Women for Refugee Women—WRW —and ILPA include an example, taken from Garden Court Chambers barristers, of what this might mean:
“a trafficked woman would need to show not only that her status as a trafficked woman is an innate characteristic”—
one shared with other members of a group—
“but also that trafficked women as a group are perceived as having a distinct identity in her country of origin. The latter is of course much more difficult to establish than the former because this is judged by the perceptions of the society in her country, and it can be very challenging to find objective evidence on women as a distinct group.”
WFW and ILPA also point out that there was “no pre-legislative consultation” on this clause because it was not included in the New Plan for Immigration. Can the Minister explain why this is the case? Moreover, the equality impact assessment on the Bill, which has been described as “superficial and inadequate” by barristers at Garden Court Chambers, fails adequately to assess the impact of the change on groups in vulnerable circumstances.
As I have already noted, the UNHCR has warned of the likely implications for a wide range of such groups. I particularly draw attention to how this clause is likely to have an adverse impact on women fleeing gender-based persecution—a group that the Government claim to care about. As I made clear on an earlier amendment, it is one of a number of such clauses that have to be viewed in the context of the failings that already exist. According to WRW and ILPA,
“Over the years, there has been substantial research on the failures of the Home Office in delivering a fair asylum process, and on the reasons why many women who flee gender-based persecution may be wrongly denied protection.”
Most recently, as I noted last week and gave the Minister some weekend reading on, the British Red Cross has published research that details experiences that
“highlight the distrust and disbelief women can face when discussing traumatic experiences of violence”,
especially, but not only, when interviewed by men. One survivor’s words are recounted:
“you feel so low and you feel so degraded and you’ve been violated and you were [telling] your story, you were expecting to be heard and to have someone who shows you some form of sympathy.”
In the Commons Public Bill Committee, the Government justified their position by asserting that the new clause was necessary to bring certainty to an area bedevilled by conflicting authority. But ILPA and WFW give that argument short shrift, pointing out:
“There is no conflicting authority: the UNHCR and the senior UK courts have a clear and constant interpretation. It is the Government that seeks to depart from this shared interpretation of the Refugee Convention, and it does so without warrant or proper justification.”
So can the Minister provide a more convincing justification today of a clause that, in the words of Women for Refugee Women and ILPA
“reverses case law of senior UK courts, contravenes UNHCR standards, and reinstates an erroneous EU law standard”?
If not, will he agree to this amendment?
My Lords, all of these clauses seek to restrict access to the protection of the refugee convention. I will speak to Amendments 103 and 104 to Clause 31 and Amendment 111 to Clause 37, which are all in the name of the noble Lord, Lord Dubs, and which I have co-signed. However, I share the view of my noble friend Lady Hamwee and the noble Baroness, Lady Chakrabarti, that all of these clauses should in fact be removed.
The problem with Clause 31 is that it changes the standard of proof for the test of whether a person is a refugee. It creates two limbs of the test and changes the bar from “reasonable likelihood” to
“on the balance of probabilities”.
Although the refugee convention does not prescribe the standard of proof, UNHCR’s handbook says:
“The requirement of evidence should … not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself.”
So, for 20 years, the UK courts, including the Supreme Court, have applied a “reasonable likelihood” standard of proof in a composite and holistic manner.
Clause 31 overturns this established interpretation of the law by dividing the overall test into a series of sub-questions and applying different standards of proof to different limbs of questioning, to require the person to prove on a balance of probabilities that they fear persecution and the decision-maker to revert to a test of reasonable likelihood in assessing whether the person would face persecution and lack state protection. It is quite a mishmash, and a complex and confusing one—not least for already burdened caseworkers. As we have heard so frequently in this Committee, if the Government really want to fix a broken asylum system, why are they making everything more complex and building in delay?
As the Bingham Centre points out, Clause 31
“allows for rejection of a person as a refugee because they failed one of the steps”
imposing that higher hurdle,
“whereas if the test was taken in its totality, the person may have been accepted as a refugee.”
The process may well lead to exclusion from sheer error because of all these complex, different bits of the test. Either the JCHR Amendments 103 and 104 should be accepted, or Clause 31 should be deleted.
On Amendment 111 to Clause 37, as the noble Lord, Lord Dubs, has said, we object to the lowering of the threshold for regarding a crime as particularly serious such that a person can be expelled. It is designed to—and will—exclude many more people from the protection of the refugee convention. Not only is the threshold sentence reduced from two years to 12 months but it changes the rebuttable presumption of “particularly serious” into an unchallengeable assertion.
This is disproportionate; a blanket exclusion is incompatible with the refugee convention, which envisages a crime that is a major threat and expulsion as a last resort. Bear in mind that the Bill seeks to impose a four-year sentence for the mere act of arriving in the UK without permission, which most refugees have to do. That gives you a measure of the lack of proportion in what is supposed to be a serious crime under the remit of the Bill; I am not validating or endorsing any crime, but under the refugee convention it has to be “particularly serious”, and the Government are departing from that.
My Lords, I confine my brief comments on this group to Clauses 31 and 32, both of which have been touched on, respectively, by the noble Baronesses, Lady Ludford and Lady Lister.
Clause 31 is peculiarly objectionable. As has been described, it divides up what should be a single, holistic question into a series of sub-questions and compounds that error by the differentiation in some important respects of standards of proof. It imposes an objectionable higher standard of proof on one critical provision. As the Joint Committee on Human Rights says in its report HL Paper 143—pages 39 to 41—it raises the standard of proof from a “reasonable likelihood” to a “balance of probabilities”.
The overall holistic approach to Article 31 was established as long ago as 1995 in a case called Ravichandran, 1996 Immigration Appeal Report, page 77. I confess that I wrote the lead judgment, but it has been consistently applied by the higher courts ever since. To quote one passage, the approach to Article 1A of the convention should be
“a single composite question … looked at in the round and all the relevant circumstances brought into account”
to see if there is a real risk.
Those promoting this clause should read a devastating critique of Clause 31 last month by Hugo Storey, the immediate past president of the International Association of Refugee and Migration Judges who has just retired from being an Upper Tribunal judge. He has no doubt that it will lead to “prodigious litigation”; in six compelling pages that those responsible for the Bill must read, he explains precisely why.
Clause 32, on the question of the particular social group, has been dealt with. It seeks to overturn Lord Bingham’s judgment in the case of Fornah, in the Appellate Committee of this House back in 2006, which was all about a 15 year-old girl trying to avoid female genital mutilation in Sierra Leone. I was a junior member of that court, and this clause tries, contrary to that clear judgment, to introduce a conjunctive approach to the two relevant criteria. It would be a grave mistake and cause grave injustice.
My Lords, I have added my name to Amendment 105 and the intention to oppose Clause 31 standing part of the Bill. I too am grateful to Women for Refugee Women and others for their briefings and support.
In the New Plan for Immigration and the briefings for the Bill, the Government have argued repeatedly that the existing asylum and refugee system is weighted against vulnerable women. The Home Secretary has repeatedly made the point that the large majority of channel crossings are by men aged under 40, for example. Given this, there might be some expectation that the Bill would contain some good news or ambitions on the part of the Government for better reaching and helping the women and girls who make up 50% of the world’s refugees and displaced people. Unfortunately, I do not see any such commitments. As a sting in the tail, in Clauses 31 and 32 we find proposals that seem to significantly disadvantage women further.
I will not repeat but endorse the arguments that it is already disproportionately difficult for women, particularly survivors of gender-based violence, to have their claims for refugee protection status correctly determined. Clause 31 can only exacerbate this situation, which is a disaster for many vulnerable women. That is also true of Clause 32, unfortunately, and I am very grateful to the noble Baroness, Lady Lister, for laying out the issue here so clearly. I am very pleased to add my name in support of her Amendment 105.
I have no wish to take up time repeating the arguments, but it is critical to reiterate the point that the “particular social group” reason is an essential lifeline for survivors of sexual and gender-based persecution not otherwise covered by
“race, religion, nationality or political opinion”
in the reasons set out in the 1951 convention, as we have heard from other noble Lords. I will listen closely to the Minister’s response on this, but it is very difficult to see the justification for this move, which goes in the face of existing legal practice. It is so important for these survivors.
Many of my best memories of this place come from last year’s excellent debates on the Domestic Abuse Bill, which really showed politics in its best light. I know that this cause is taken seriously by the Government, but it seems that there is a blind spot on migrant women. We will discuss this again on later amendments, including my right reverend friend the Bishop of London’s forthcoming Amendment 140, but I end with a plea to the Minister to look again at these clauses and, if these amendments are not right, to present others that will ensure that vulnerable women are not further disadvantaged by this change.
I offer the support of the Green group for all the amendments in this group and express horror at the whole nature of this part of the Bill. It is a great pleasure to follow the right reverend Prelate and to agree with everything that she said about the gender aspects of the Bill as it now stands, as also mentioned by the noble Baroness, Lady Lister.
I want to address Amendment 111 and make a simple observation: the average length of a prison sentence in England and Wales in 2021 was 18.6 months, compared with 11.4 months in 2000. Is this really something extraordinary? Is the UNHCR right in saying that this change in terminology is not right? I think that it clearly is.
I want to draw out what the noble Baronesses, Lady Lister and Lady McIntosh, said, both of them reflecting on different elements of how this law is throwing out 25 years of British legal tradition. I am not going to reopen the discussion on the last group about particular political labels, but I will note that this is happening in a country where only a couple of years ago we saw our most senior judges under attack on the front pages of certain newspapers. That is the context in which this is occurring.
I want to reflect—a number of people have talked about this but I shall boil it down—on what the Government’s proposals are likely to do: produce a large number of people who are denied status but who cannot be sent home because it is clearly impossibly unsafe and dangerous to send them there. That leads to a situation of more chaos and more forced black-market employment, which surely no one could want.
My Lords, I want to give practical expression to what those who have spoken, including the noble Lord, Lord Dubs, and the noble Baroness, Lady Ludford, have said, and to the exposition of the noble and learned Lord, Lord Brown: if a law is going to be passed, it needs to be clear, simple and not confused, as in Clause 31.
I shall tell a story. A friend of mine was going to be best man at our wedding, but Amin’s soldiers were hunting for him, so he left Uganda on the very day that we got married, dressed like a woman, and landed up in Kenya. That was the only way he could get away. He had nothing. Friends in Kenya managed to get him a ticket and he came to Oxford with nothing. There he studied law and did very well as a result, but if the test had been on the grounds of probability, he probably would not have done so. It comes down to the question of “reasonable likelihood”. All he could do was describe how he left Uganda. If you are from Uganda, you know you do not go around dressed like that, but the people who listened to his case at Oxford could associate with it.
I ask this for the reasons that the noble and learned Lord, Lord Brown, has given: why in one clause do we have “reasonable likelihood” and in another “the balance of probabilities”? That confuses the legislation.
I have been able to represent some asylum seekers when they have come here. I think the Joint Committee on Human Rights is right that this is what should be incorporated in our law and we should not try to change it—unless of course we are following the analysis of the noble Baroness, Lady Chakrabarti, that instead of making it clear as we incorporate this into our legislation, we are saying, “Throw it out. We know better and we are going to do it in our own way.” I do not think that that makes for good law. It is not simple, straightforward or clear. In the old days, it was said that any good law must be understood by the woman or man on the Clapham omnibus—if they cannot understand it, your law is not very clear. The judgment of Lord Bingham is clear.
Why abandon our case law as we begin to incorporate this into our law? This time the Minister will have to give us reasons why that is the case, instead of—forgive me—what sounds like a bullish reaction to every reasonable thing that has been said. I plead with the Minister to use simple language and retain “reasonable likelihood”, because that is much easier to deal with when people come here without papers or documents and their lives are in danger.
My Lords, I could simply repeat what I said at the conclusion of the last group: the UK should not engage in the unilateral reinterpretation of the refugee convention—not that we are rewriting it, but we are reinterpreting it—but I shall go into a little more detail.
The JCHR, supported by Amnesty and Migrant Voice, believes that the standard of proof as to whether an asylum seeker has a well-founded fear should remain as “reasonable likelihood”. Amnesty makes the additional point that, as well as raising the standard, Clause 31 makes the decision more complex and the Home Office is getting it wrong too many times already.
We support Amendments 103 and 104 but we also agree with the noble Baroness, Lady Chakrabarti, that Clause 31 should not stand part of the Bill. Amendment 105, to which I have added my name, attempts to bring the definition of “particular social group” into line with international standards and UK case law. Again, based on the principle that the Bill should not be unilaterally reinterpreting the refugee convention, as I said in the previous group, I agree with the noble Baroness, Lady Chakrabarti, that Clause 32 should not stand part of the Bill.
Amendment 111 seeks to prevent the definition of “particularly serious crime” from being reduced to 12 months’ imprisonment. As my noble friend Lady Ludford said, bearing in mind that the Bill attempts to set the maximum penalty for entering the UK without authority at four years’ imprisonment, the two changes could potentially exclude all asylum seekers who do not enter through resettlement schemes. As before, we support the assertion of the noble Baroness, Lady Chakrabarti, that Clause 37 should not stand part of the Bill.
My Lords, I will be brief. We support the intentions of the amendments. I thank my noble friends Lord Dubs, Lady Lister of Burtersett and Lady Chakrabarti, who have been leading on these amendments.
I found it interesting to hear from my noble friend Lady Lister that there was no pre-legislative consultation on the issues covered by Amendment 105. Normally if we want changes in the law, we are told that such things have to go through a lengthy and elaborate process, but these seem to have appeared with a certain degree of rapidity.
I really only want to ask the Government a couple of questions. First, in each of the three cases—that is, Clauses 31, 32 and 37—what is the problem that the Government claim to be fixing? What is it, particularly in relation to Clause 31, about the current standard of proof that they believe is failing?
Secondly, could the Government tell us where the pressure has come from to make these changes in the law? Clearly this is not simplification; it is changing the law, so let us not beat around the bush on that. Where has the pressure come from? Has it been intense? From what sources has it come? Who, or what organisation, has been after achieving these particular changes in the law? I do not recall—though I may be wrong—having heard people marching through the streets demanding these changes, which makes one wonder if some requests for change were made at a political fundraising dinner where no one else knew what was going on.
My Lords, I am not sure whether it is the time of the evening that prompted that reference to dinner; otherwise, it is not immediately apparent to me what the relevance of it was. I will come back to that rather less substantive point—if I may say so, respectfully—at the end.
Let me deal first with Clause 31. I am grateful to the noble Lord, Lord Dubs. He is right that there are points of principle that underlie these amendments; they underlay the last group as well. I too will try not to repeat the points that I have made. There are points of principle that are at issue between us, and we have set out our respective positions. We believe that the test set out in Clause 31 is compliant with our international obligations. More specifically, we believe that it will provide, and lead to, better decision-making, because it sets out a clear test, with steps for decision-makers, including the courts, to follow. That will lead to greater consistency.
Turning to Amendments 103 and 104, although I listened very carefully to the noble Lord, Lord Dubs, and I agree with the importance of us carefully assessing whether asylum seekers have a well-founded fear of persecution, as required under Article 1(A)(2) of the convention, we do not agree with these amendments because, taken together, they will essentially maintain the current standard of proof system. In so far as my noble friend Lady McIntosh of Pickering said that it was, to a certain extent, a probing amendment, let me try to explain.
First, this is not about setting aside decisions of the court. The courts are there to interpret the legislation as it stands—that is what they do. Parliament is entitled to change the legislative background, in so far as it is consistent with our treaty obligations. Clause 31 sets out a clear, step-by-step process. I hear the point made by the noble and right reverend Lord, Lord Sentamu, that it should be—so far as legislation can be—in simple language and a clear test. The problem at the moment is that there is no clearly outlined test as such. There is case law, there is policy and there is guidance in this area, but the current approach leads to a number of different elements being considered as part of one overall decision. What we seek to do here is to introduce distinct stages that a decision-maker must go through, with clearly articulated standards of proof for each. We believe that this will lead to better and more consistent decision-making.
At its core, in Clause 31(2) we are asking claimants to establish that they are who they say they are and that they fear what they say they fear to a balance of probabilities standard. That is the ordinary civil standard of proof for establishing facts, and those are facts in Clause 31(2); namely, more likely than not. It is reasonable, I suggest, that claimants who are asking the UK for protection are able to answer those questions. We have looked carefully, of course, at the often difficult situations that claimants might come from and the impact that might have on the kinds of evidence that they can provide. However, we consider that our overall approach to making decisions, which includes a detailed and sensitive approach to interviewing, allows all genuine claimants an opportunity to explain their story and satisfy the test.
There is international precedent that supports our decision to raise the threshold for assessing the facts that a claimant presents to us to the balance of probabilities standard. Both Canada and Switzerland—highly respected democratic countries, dare I say it—have systems which examine at least some elements of a claimant’s claim to this higher standard. Respectfully and rhetorically, let me ask this of the noble Baronesses, Lady Ludford and Lady Bennett of Manor Castle. The noble Baroness, Lady Ludford, said that this was confusing and complex. The noble Baroness, Lady Bennett of Manor Castle, said that she had horror at it. The higher standard is used in Switzerland. Does the horror extend to Canada and Switzerland as well? There is nothing wrong in principle with adopting the higher test for some parts—I will come to it in more detail—of the decision-making tree.
Does the Minister recall that I did not just say that it is about the higher standard? It is about having different limbs and different requirements under those different limbs, and switching from “reasonable likelihood” to “balance of probabilities” as part of the composite test, which is not holistic but is in different parts. That is what is confusing, not just a change in the standard of proof.
My Lords, with the greatest respect, it is not confusing at all, because Clause 31(2) establishes the facts, and that is all a balance of probabilities. Then, in Clause 31(4), the decision-maker turns to questions of the future. It is at that stage that the reasonable likelihood test is the appropriate test, because the decision-maker is looking to assess what might happen in the future. That is why we have a lower test at that stage. It is quite usual in law to have different stages of a test and different levels of probability at each.
Could the Minister answer the question of the noble Lord, Lord Rosser? What is the problem that we are trying to solve here? Who is pressing for this change? The Law Societies have advised against it. It seems to me that the only purpose it serves is to make the task of determining whether the fear exists and is well-founded more complicated and more likely to result in the answer, “No, let’s send him back.” That seems to be what is driving this. I remind him that, in late July and early August, Hazaras from Afghanistan—asylum seekers here—were still receiving letters of rejection, telling them that they were not at risk if they were sent back to Kabul.
My Lords, I am grateful for the question. What is driving it, as I said a few moments ago, is the attempt to have a consistent and clear approach to decision-making. When you have a single test with different elements, and it is all under “a reasonable likelihood”, it is then that you are more likely to have inconsistent decision-making—I will not use the word “mishmash”. What you are doing here is really two things, and Clause 31 sets them out clearly. You are first saying, “Are you who you say you are?” and “Did you, in fact, fear such persecution?” Those are factual questions, decided on the balance of probabilities. Then the question is: “Is there a reasonable likelihood that, if you were returned, you would be persecuted?” That is a question of reasonable likelihood.
My noble friend is, in fact, rewriting the law. I am not an immigration lawyer, but if I were, I think I would be a little confused at the moment. In the case that was decided in 2021, Kaderli v Chief Public Prosecutors Office of Gebze in Turkey, it was clearly said that
“The true test involved the application of a lower standard”
than the balance of probabilities. So now no immigration lawyer could plead the application of the lower standard because my noble friend is raising the bar in this Bill.
I thought I made it absolutely clear when I said earlier that the court in that case made its decision against the legislative background at the time. Parliament is entitled to change the legislative background. We will want to make sure that we remain consistent with the refugee convention, and, as I said earlier, we believe that we are. There is nothing wrong with doing that. It is simply not the case that we are somehow bound as a Parliament by what the Court of Appeal said in the case referred to by my noble friend. Therefore, with great respect, I disagree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, where he said that a single holistic question was better and that the higher standard was objectionable. With respect, I disagree on both points.
Does the Minister agree that, if, under this clause in future, somebody were to fail—they could prove only 45% of the relevant limb of the clause—they nevertheless could not be refouled? Certainly, under Article 3 of the ECHR the test is “reasonable likelihood” and not “balance of probabilities”.